On The Records

More than a year ago, New Haven’s Police Commission secretly approved a policy that set out what type of drug use would disqualify applicants from joining the force. Even after it took effect, the Police Department refused to release the policy to the public.

I appealed to the Connecticut Freedom of Information Commission, which subsequently voted to order the policy’s release. In a unanimous decision, the commissioners said that the police shouldn’t have met in secret and shouldn’t have withheld either the draft or final versions of the policy.

Below you can find the initial brief I wrote to prove that the closed-door meeting and the records denial both violated state law.

i. Executive Session

City lawyers claim that the Police Commission needed to go into executive session to discuss an exempt public record (C.G.S. § 1-200(6)(E)). Specifically, the commission said they planned to discuss “preliminary drafts of notes” for which the police chief “determined that the public interest in withholding … outweighs the public interest in disclosure” (C.G.S. § 1-210(b)(1)).

However, the Police Commission’s justification doesn’t meet either of the two prongs for an exempt record, being neither preliminary nor in the public interest to withhold.

First, the “draft” being discussed wasn’t “preliminary,” or in other words, “predecisional,” as the law requires.

As the courts have consistently upheld, “preliminary” documents only include those records that are at the core of how government policies are formulated (Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 342 (1989); Shew v. Freedom of Information Commission, 245 Conn. 149, 165, 714 A.2d 664 (1998); Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 73 Conn. App. 89, 95, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003)). They include the written deliberations that help agencies make their policies, not the actual policies themselves,

As the Connecticut Supreme Court has held, the exemption for “preliminary drafts” only applies to documents that are “predecisional,” where the notes “do not in and of themselves affect agency policy, structure or function.” (Wilson v. Freedom of Information Commission, 181 Conn. 324, 332, 435 A.2d 353 (1980)).

More recently, summing up precedent, the court defined four criteria that must be met: “[A] preliminary draft or note under § 1–210(b)(1) is one which is (1) preparatory, (2) not a complete resolution of a matter in itself, (3) not germane to the eventual end product of the record, and (4) takes the form of deliberation over a matter. A document that is final in itself and not deliberative does not qualify for the exemption.” (University of Connecticut Health Center v. Freedom of Information Commission, CV116008847, 2012 WL 1003757 (Conn. Super. Ct. Feb. 27, 2012).)

In this case, the commissioners were not reviewing any preliminary drafts that would influence later decision-making, but the actual policy itself. Already drafted by the police department’s staff, the policy took effect immediately after the commission’s vote. In effect, this approval was closer to a rubber-stamping of a completed policy than a review of the “predecisional” material that the legislature wanted to protect.

This reading of the statute is in line with your other decisions, including cases in which the FOIC Commission ruled that a school board’s draft request for proposals and a city’s draft contract could not be debated in private, because both included the final text for a decision. (Hartford Board of Education v. Freedom of Information Commission, No. CV 95-0550463, 1996. WL 176354 (Conn. Super. Mar. 29, 1996); Commissioner of Public Works v. Freedom of Information Commission, No. CV 01-0509953S, 2002 WL 853593 (Conn. Super. Apr. 8, 2002)).

Second, the police chief never established that the public was better served by keeping the document secret. Given the extraordinary powers cops are entitled to use, there’s a significant public interest in knowing what qualifies someone to carry a gun and a badge.

This year, New Haven’s police department have struggled to compete with suburban police departments in recruiting, leading some to worry that the department is lowering its standards to fill its diminished ranks. An open discussion of this hiring policy would have clarified the exact changes the department intends to make and allowed the public to hear the reasoning behind it. Indeed, by keeping the process secretive, the department allowed misinformation to spread about how the policy affects marijuana use, with some commenters on our site claiming to know how it affected the civil service list.

Furthermore, New Haven’s police department, like other law enforcement agencies, discloses all its other rules for who’s qualified to join the force. The department follows the 31-page city civil service rules, voted on openly by the New Haven Civil Service Board, and the 32-page state training standards, voted on openly by the Police Officer Standards and Training Council. The police department goes out of its way to alert prospective applicants to these rules, issuing a 20-page “New Haven Police Officer Applicant Handbook” for the latest round of recruits. Given the past disclosure of its hiring rules, the police department cannot reasonably argue that its latest hiring policy would be damaging to release.

Assistant Chief Racheal Cain added credence to this viewpoint in the way she described the policy in an interview after the meeting ended. “It’s just a formality, really,” she said. She called the new policy an “opportunity to put everything back in place and vote and make sure we are still doing the same exact process.” If the new policy made only minor adjustments to the existing, publicly available policies, then there’s no reason why the public interest would be served by secrecy.

Other technical violations also prove that the police intended to keep shut the public out, hiding what was truly being discussed.

The agenda does not accurately describe the policy being discussed, vaguely referring to it as a “draft hiring policy,” rather than the specific title of “Employment Drug Policy” that immediately took effect after the vote. And during the hourlong executive session, city employees were also allowed to stay in the room beyond the time necessary to present their “testimony or opinion” (C.G.S. § 1-231), while the press was asked to leave.

While the law gives the agency responsibility to decide how the public interest is best served, the police chief never did so. The commission should not allow the agency to abuse its discretion by belatedly introducing frivolous claims.

ii. Public Record

After the policy was approved, the police department wrongly denied my right to inspect the record in person and obtain a copy. Both times, the police department maintained that the policy was categorically exempt as testing material.

However, this misconstrues a plain reading of the law. The Freedom of Information Act carefully defines the exemptions for “test questions, scoring keys and other examination data” (C.G.S. § 1-210(b)(6)).

Assistant Chief Cain admitted that the policy doesn’t contain any of these records.

I asked her, Did the new policy contain test questions? “No, it was testing procedure,” Cain said. “It’s a portion of the testing process, not the test itself that we were speaking about.”

I asked her, Did the new policy contain the test’s answers? “No,” Cain said.

I asked her, Did the new policy contain any data about the results? “No, no, that’s all been done,” Cain said.

Michael Wolak, another city lawyer, tried to stretch the definition in state law to include anything related to testing. “It’s within that ambit,” he said. “If you want to challenge it, that’s up to you, but it’s part of the whole testing thing.”

Cain added, “I can tell you that we’ve gone up to the FOI Commission and won this.” She seems to wrongly rely on the FOI Commission’s decision in Stafford Green v. Chief, Police Department, City of New Haven, (Docket #FIC 2016-0228, Jan. 25, 2017). In that case, the FOI Commission rightly denied a job applicant’s request for 46 pages of test questions.

However, other aspects of the police hiring process, even if they involve some form of “testing” are not exempt. The FOIC previously held — with approval from the courts — that state law applies only to “standard test questions,” nothing more (State of Connecticut, Administrative Services v. Freedom of Information Commission, No. CV84-0293826S (February 10, 1987) (It is a tortured construction to extend “other examination data” to more than test materials or to extend the meaning of the phrase to “evaluations”); Chairman, Merit Promotional Committee v. Freedom of Information Commission, CV-86-318450 (November 16, 1988); and City of Stamford v. Freedom of Information Commission, No. CV 99-0497667S, 1999 WL 1212439 (Conn. Super. Dec. 6, 1999).)

The requested record here fits into a different class entirely, which have nothing to do with the actual test but the governing procedures for how it should be administered. As Thomas Hennick, the Freedom of Information Commission’s public education officer, told me, “A policy isn’t testing material.” The documents that guide testing aren’t the test itself, and as such, the policy should be released immediately.