FOI Commission orders release of Haberek text messages – The Day

Hartford — The Freedom of Information Commission unanimously ruled in favor of The Day on Wednesday and ordered the town of Stonington to release the remainder of the text messages requested by the newspaper from former First Selectman Ed Haberek’s town-issued BlackBerry device.

The commission upheld a hearing officer’s recommendation that a transcript of roughly 18,000 text messages should be provided to the newspaper in unredacted form within two weeks. The town also must provide the phone numbers contained within the previously released 11,600 redacted messages, the commission ruled.

The report by hearing officer Kathleen K. Ross concluded that, based on case law and inspection of the records, the town’s redaction of the previously released text messages did not violate the Freedom of Information Act, because the records were determined to be personal.

But at issue was the remaining records that the town never reviewed — or provided to the commission for inspection, according to the report.

The report said the town waited until January — about 10 months after receiving the request from The Day — to review the records, because Haberek had been asked to review them. The report said it found that Haberek resigned in the fall of 2014 before reviewing the records.

“…without the opportunity to inspect the records in camera, the Commission is unable to make any determination regarding whether the portions of such records claimed to be personal relate to the conduct of the public’s business,” the report stated.

On Wednesday, Joe Wojtas, reporter for The Day, argued before the commission that it was in the public interest to release Haberek’s text messages.

“It shows how he conducted the public business in the town of Stonington,” Wojtas said.

He pointed out examples, such as that on July 30, 2011, there were 324 text messages sent from the device, including 209 that took place during Town Hall hours.

Wojtas also argued that there is no expectation of privacy for employees under the town’s policy for use of town-issued devices.

Brian K. Estep, representing the town of Stonington, argued that the messages were not public records and it is not within the jurisdiction of the commission to uphold town policy. He said there is some protection under the law for the privacy of public officials and that The Day’s request fell within this domain.

He also pointed out that the report found that the town was right to redact the previously released text messages.

“Not a single one was found by the hearing officer to be improperly redacted,” he said.

Commissioners on Wednesday questioned why the town’s review of the records only began 10 months after the Freedom of Information request and why there was no oversight to require Haberek to do so.

Estep said that, under a first selectman form of government, “no one can order a first selectman to do anything.”

One commissioner, Lenny T. Winkler, said it would have been appropriate to also issue a civil penalty to the town, but The Day had not requested that and there was not enough time in the process to hold another hearing on the issue.

The Day had filed a Freedom of Information request in February 2014 for all text messages that Haberek sent on his town-issued BlackBerry from the period of 2011 through August 2012, as well as emails and a record of phone calls.

In May 2014, The Day appealed to the Freedom of Information Commission that the town had violated the Freedom of Information Act by not providing the records.

Earlier this year, the town released about 11,600 mostly redacted text messages; 518 were unredacted and dealt with town business, according to a previous article by The Day.

Estep said after the meeting that a decision to appeal will be up to the town’s Board of Selectmen.

On Wednesday night two members of the Board of Selectmen indicated that they would not be in favor of appealing the commission’s decision.

“I’m for transparency. Let’s release these things now,” Selectman Mike Spellman said.

Selectman Rob Simmons said, “I believe The Day made a legitimate request and it was not responded to in a timely fashion. I don’t want to spend any more time on this unless there would be a major legal liability to the town.”

First Selectman George Crouse, who was Haberek’s running mate in the last two elections, was not immediately available at Wednesday night’s selectmen meeting.

k.drelich@theday.com

Twitter: @KimberlyDrelich

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