Smart Growth for Vernon, CT
FOI Commission member says Vernon violated public disclosure law

By Suzanne Carlson
Journal Inquirer
Published: Wednesday, May 9, 2012 12:08 PM EDT

VERNON — Town officials violated state disclosure laws by unnecessarily delaying access to public records under former Republican Mayor Jason L. McCoy, according to proposed decisions from the Freedom of Information Commission.

Kathleen K. Ross, a member of the commission, issued the proposed decisions May 1 in response to complaints filed by the Journal Inquirer in September 2011.

A hearing on the consolidated complaints was held Feb. 2 with Town Administrator John D. Ward and Town Attorney Martin B. Burke representing the town. The full commission is scheduled to vote on the proposed decisions May 23.

Ross said the town violated three sections of the Freedom of Information Act in the first of three decisions on separate incidents involving town officials’ response to requests for access to public documents.

The first case began Sept. 19 when the Journal Inquirer made a verbal request to Ward for access to the job application and resume for Zoning Enforcement Officer Andrew Marchese, who was also a client of McCoy’s private law firm.

Ward denied the request, saying he first needed to provide Marchese with an opportunity to object to the disclosure of records contained within his personnel file.

But state law requires employee review of requests for personnel files prior to disclosure only if the town “reasonably believes that the disclosure of such records would legally constitute an invasion of privacy,” according to freedom-of-information law.

Marchese did not object to the disclosure of the documents, which were provided to the Journal Inquirer on Dec. 23, but Ward’s failure to first review the application and resume and ascertain the nature of the information they contained caused undue delay, Ross said.

She ruled in the proposed decision that “a three-month delay in providing access to the requested records, under the facts and circumstances of this case, is not prompt,” and ordered the town to henceforth comply with relevant disclosure laws.

In the second case, the Journal Inquirer made a verbal request to McCoy on Sept. 29 to inspect a contract he had signed with the Manchester law firm of Blackwell, Davis, and Spadaccini for revisions to the town’s zoning regulations.

The request was left in a voicemail on McCoy’s cellphone to which he responded the same day in an email, stating, “Please do not call my cellphone anymore. Please make an appointment with my executive assistant and schedule a time to meet, at which time I will respond to your questions. My executive assistant will schedule an appointment with me, when my schedule permits. … I have a couple of openings toward the end of October.”

The Journal Inquirer contacted Administrative Executive Assistant and former Republican Mayor Diane Wheelock, who said in an Oct. 14 email that McCoy could meet with a reporter on Nov. 7 at 4 p.m.

Ross said town officials failed to respond promptly to the request as required by law and “at the hearing in the matter, the respondents failed to offer evidence as to why it took the mayor more than one month to comply with such request.”

She also ordered the town to comply with relevant disclosure laws.

Ross has recommended that the commission dismiss a third complaint against the town, in which Ward denied the Journal Inquirer access to a document that McCoy had provided to a news website.

The Journal Inquirer made a verbal request to Ward to inspect an arbitration decision by the state Labor Department on Sept. 30 that already had been published online.

The website stated that the document had been provided to the press “immediately” by McCoy, who already had declined to respond to the Journal Inquirer until Nov. 7.

But Ward said he was unaware of the decision, did not have a copy of it, and would need to further consult with town lawyers before deciding whether to release it.

The Journal Inquirer also provided the request in writing after being asked to do so by Ward, which is not a requirement of the Freedom of Information Act, and he refused to provide a similar written statement.

But Ross said in her proposed decision that the Journal Inquirer “offered no evidence at the hearing in this matter that the respondents made a written request a condition precedent to fulfillment of such request.”

The Journal Inquirer was provided with a copy of the decision in an Oct. 14 email, and Ross said in her decision that the two-week delay was not unreasonable because Ward was taking over responsibility for FOI requests from former Assistant Town Administrator Peter Graczykowski, who had recently resigned.

Burke, who in 1975 was one of the drafters of the state’s freedom-of-information law, made several attempts to have the Journal Inquirer’s complaints dismissed in the four months prior to the Feb. 2 hearing — despite conceding that the town had committed violations of disclosure laws.

After hearing Burke’s explanation of the circumstances of the Sept. 19 request at the hearing, Ross asked, “So are you conceding that there was a violation here?”

“Yes,” Burke said.

He went on to say that the cases were under the administration of McCoy, who had been out of office for several months by that point.

“I think he had a different view of the parameters of the Freedom of Information Act,” Burke said. “I’m only the attorney, I don’t make policy, but I know the act very well.”

Burke said he made attempts to resolve the Sept. 19 and Sept. 29 issues by providing the Journal Inquirer with copies of the requested documents in late December.

“Now, did we provide it within a reasonable period of time? I don’t think so, I’m not arguing that,” Burke said, adding that current Republican Mayor George Apel “has perhaps a more enlightened view of the act.”

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