Proposed FOI ruling would force Stonington to release original operations report

Stonington — Ten months after The Day filed an appeal, a state Freedom of Information officer has found that the town violated state law by refusing to release a consultant’s report on town operations to the newspaper.

Hearing Officer Valicia Dee Harmon found that the town’s reasons for refusing to release the report, which it claimed was a draft and thus exempt from disclosure, were “evolving, inconsistent and not credible” and also did not meet the legal standards for nondisclosure.

She also found the town removed some of the consultant’s opinions on how the town operates before releasing a version to the public.

The Freedom of Information Commission has scheduled a Feb. 14 meeting in Hartford, at which time it will vote whether to adopt Harmon’s recommendations and order the town to release the original report to The Day.

First Selectman Rob Simmons said Tuesday night that the town had received Harmon’s proposed ruling and is in the process of deliberating its next step.

The town paid consultant Keith Chapman, the former Newington town manager, $15,000 to produce a report that analyzed the operations of town departments. That report made 56 recommendations for improvement.

The town, which later voted to release its final report, had refused to release Chapman’s original January 2017 report to The Day two months later, calling it a draft. It maintained his report was exempt from release under FOI law “because the Town believes the public interest in withholding the draft at this point in time clearly outweighs the public interest in disclosure.” The town also argued that Chapman evaluated matters outside the scope of his contract.

The Day argued there was no overriding public interest in keeping the draft secret and that it is in the public interest for residents to see the consultant’s unedited view of how the town operates. In addition, The Day pointed out that Simmons had said he had begun to implement some of the report's recommendations, and that the report was commissioned in part because of concerns over the loss of many experienced employees and employment issues that led to lawsuits and in one case an arrest of a highway employee for fighting with a landscape contractor while on duty.

One lawsuit and three grievances filed by fired highway supervisor Louis DiCesare II has cost the town in excess of $210,000 in legal fees as of September of 2017. Those cases still are pending.

After Harmon held a hearing on the Day’s complaint, the town submitted a copy of Chapman’s report for her to review.

She found that Chapman’s original report was not a draft but a “culmination of the consultant’s review of the town’s operation and procedures, along with his analysis of certain issues and recommendations for overall improvement.” Harmon added that even if it could somehow be considered a preliminary draft, it would be subject to disclosure as an interagency recommendation or report comprising part of the process by which governmental decisions are formulated.

Harmon wrote in her recommended finding that after Simmons, the Board of Selectmen and town labor attorney reviewed the original report, Simmons wanted to see some of Chapman’s findings and conclusions “revised and/or excised.” She said the report was subject to revision after being submitted to the Board of Selectmen.

Harmon said that in March of 2017, Simmons told The Day that withholding the report outweighed the public interest in its release because there were topics in it that may not become part of the final report. In April, she said Simmons explained to The Day there were no substantive changes between Chapman’s report and the one eventually released by the town but it was being withheld because it contained typographical errors, corrections of grammar and phrasing and because he wanted to remove employees’ names and use only their titles. And at the May hearing that Harmon presided over, she said Simmons testified that he did not release the original report because it was not edited properly and because the labor attorney said it went beyond Chapman’s original charge.

In a separate but related FOI complaint, The Day had alleged the Board of Selectmen held an illegal executive session and posted an illegal agenda for its April 26, 2017, meeting, during which it discussed the report.

Last June, the town agreed to settle the complaint by issuing a signed statement in which Simmons acknowledged the notice of executive session and subsequent executive session “were improper pursuant to the Connecticut Freedom of Information Act.” It also agreed to provide a training update session for Stonington officials. Based on those statements, The Day withdrew its complaint and the hearing was canceled.

j.wojtas@theday.com

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