Judge: I Won’t Crush Open Records Law

A 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.

The 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.”