Judge: I Won’t Crush Open Records Law

Thomas Breen photoA Superior Court judge refused to suspend the Freedom of Information Act in part of New Haven — despite the efforts of a lawyer representing cops who were passed over for promotions.

At the end of a half-hour hearing Monday in a sixth-floor courtroom at 235 Church St., the judge, W. Glen Pierson, turned down lawyer Patricia Cofrancesco’s motion for a protective order that would have put strict limits on what information the city could make public about her clients over the course of the case.

Cofrancesco represents six New Haven cops who are suing the city for allegedly violating department protocol when it failed to promote the officers to sergeant and lieutenant positions back in 2015.

CT Trial Lawyers AssociationThe police department’s promotional practices were not yet at issue during a hearing in court on Monday. Rather, the judge listened to Cofrancesco and defense lawyer Nicole Chomiak, who is representing the city in this case, argue the merits of Confrancesco’s July 5 motion for a protective order against the city because of the Police Department’s compliance with 2015 Connecticut Freedom of Information Act (FOIA) requests from the Independent and from WTNH.

Those requests were not about the conduct of the officers who hired Cofrancesco to sue over their passed-over promotions. But one of the plaintiffs’ names popped in the material, because he was disciplined.

Cofrancesco has been arguing that the court shouldn’t allow information about the plaintiffs’ disciplinary records to be mentioned in this case. (The city argues that the information is germane to why they didn’t get promoted.) In her motion, Cofrancesco asked the judge to prohibit the city from disclosing any further personnel or Internal Affairs (IA) information related to her plaintiffs while her case is in court — basically to suspend the use of the Freedom of Information Act.

“I do not sit here with the power to just do whatever I please,” Pierson said in his denial of Cofrancesco’s request, “to fashion whatever remedy I think may be correct in a given circumstance. I’m limited by law set forth in the case law, in statutes, in the practice book. And I do not see and I have not been presented with any authority that I determine gives me the right to grant this motion for protective order in these particular circumstances.”

Cofrancesco began her argument before the judge by declaring that the city’s compliance with the Independent’s 2015 FOIA request represented another example of the city’s efforts to “subvert the promotional process” for her clients.

She said the city violated FOIA in disclosing the requested IA files to the press back in 2015 because those files may have contained personal information about one of her plaintiffs, such as his home address, day of birth, medical information, drug and alcohol information, or even information about his family.

Furthermore, she said, the city is “hell-bent” on reviving the 2015 IA information in a public setting as a means of using the substance of a previous disciplinary action against one of her clients in order to stymie his current lawsuit’s attempt to grant him a promotion. Using disciplinary information from three years ago, she said, is a violation of terms laid out in the local police union’s collective bargaining agreement.

“I don’t know if the court has any power over what the New Haven Independent writes …” Francesco said.

“I can assure you,” Pierson interrupted, “I don’t have any power, since they’re not a party to this litigation.”

But the city is a party to this litigation, Cofrancesco replied. And, she said, the judge should issue an order requiring the city to follow the legal parameters of FOIA, and requiring the city to refrain from sharing or using information related to information revealed (and reported on) in the 2015 IA report.

In opposition to the plaintiff’s motion, Chomiak called “blatantly false” Cofrancesco’s claim that the city is hell-bent on spreading around information from the 2015 IA report.

“The [police union’s] collective bargaining agreement does not trump the Freedom of Information Act,” she said. Furthermore, she said, personal information like the home address of police officers is rarely included in IA files. Usually, the files list officers’ addresses as 1 Union Ave., which is the address of the Police Department’s headquarters.

Chomiak denied that the city violated any laws in complying with the Independent’s FOIA request back in 2015. She said the city currently has no intention of conspiring with the media to publicize information related to the plaintiff’s prior discipline.

Plus, she said, the city doesn’t need a court order to comply with the law.

“It has obligations under the law to comply with the law,” she said. “FOIA sets forth those obligations.” If the city allegedly violates FOIA’s laws, she said, then there is an established process for complainants to file lawsuits and complaints before the Freedom of Information Commission (FOIC), not before just any Superior Court judge.

Judge Pierson ultimately agreed with Chomiak. He said he does not have the authority to rule on an alleged FOIA violation in the context of a case that has to do with an alleged breach of contract, not with an alleged FOIA violation.

“The court is not going to issue an order requiring the city to obey FOIA in a case that does not involve an alleged FOIA violation,” he said. “If there is a FOIA violation, that is to be addressed in another forum in a separate action. I do not have the power to unring the bell any more than anybody else does, and for that reason, the motion for protective order is denied.”

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posted by: observer1 on July 31, 2018  12:02pm

If there is immediate and sustained constructive progress documented in an employee personnel file from the time of a disciplinary action, then three years is a sufficient time penalty. The purpose of discipline is to change behavior. Previous conduct is normally not expunged from a personnel file, but it should not preclude promotion after three years of good performance. We typically give second chances to people in our society. To tell someone that one problem will brand them for their entire term of employment produces an employee who will be less than motivated to perform well. We don’t pass out scarlet letters anymore. We allow people to turn their lives around if they so desire.

posted by: Bill Saunders on July 31, 2018  12:47pm

Judge Glen Pierson was the presiding Judge over my recent failed lawsuit against NHPD.

I thought he was excellent and fair in every way….. a real paragon to his profession. 

I would even give this praise ‘under oath’, but it would probably be hearsay….

posted by: Xavier on July 31, 2018  1:43pm

Patricia Cofrancesco, sometimes maligned, but always a ferocious fighter for her fellows. Love her or hate her, better to have her on your side of the desk.

posted by: Ozzie on July 31, 2018  2:29pm

You can get hired by the New Haven Police Department after having your record expunged for a Felony conviction but you can’t be promoted for a disciplinary problem , Sounds just about right for the way the City New Haven operates

posted by: Frank Columbo on July 31, 2018  4:46pm

Bravo Judge Pierson and attorney Chomiak!!!!  Chomiak called “blatently false” Cofrancesco’s claim that the City is hell-bent on spreading around info from the 2015 IA report. Spot on and an act of pathetic desperation on Cofrancescos’ part.

“The motion for Protective Order is Denied” Amen.

posted by: Kevin McCarthy on August 1, 2018  7:20am

Observer1, your points are reasonable but not relevant to this case. This case is about what information should be available to the public, not the disciplinary process. The city could decide to give little or no weight to an officer’s past behavior if his or her subsequent behavior was appropriate. Judge Pierson’s ruling does nothing to preclude this.

BTW, the caption below the judge’s photo is inconsistent with the story and the headline. The judge ruled on a motion for a protective order, not on whether there was a FOIA violation. But had the judge granted the motion, the effect would have been “to suspend the Freedom of Information Act” according to the first sentence of the story.

posted by: challenge on August 1, 2018  8:35am

Hmmm. We shouldn’t brand people forever for past wrongdoing? Tell that to millions whose records are not expunged after 3 years, 10 years, 20 years if ever. “second chance ” is nothing more than an overused cliche unless your profession is policing and politician.