After two hearings on the matter, Connecticut's Freedom of Information Commission (FOIC) is ordering former Board of Education members Kathy Hamilton and David Freedman to produce e-mails and/or other transmission from their personal computing devices that may contain the names of recipients and possible additional content related to information that was published on social networks in the fall of 2015 by the secretary of Newtown's Republican Town Committee, who is also a local deputy registrar of voters.

The FOIC is requiring those electronic records, which were posted on Facebook by Carey Schierloh, to be turned over to commission complainants, resident Laura Terry and former school board vice chair Laura Roche.

The decision was presented September 28, and was subsequently dispatched to the respondents. Ms Hamilton and Mr Freedman each have an opportunity to appeal the order within 45 days of receiving official notification of the finding, according to FOIC spokesperson Tom Hennick.

Neither Ms Roche or Ms Terry would comment for this story. When contacted individually, both Ms Hamilton and Mr Freedman also offered no comment. The Newtown Bee, however, did  receive a copy of a post-hearing brief from respondent's attorney Mark Sommaruga.

The first of two hearings on the complaints or appeals by Ms Roche and Ms Terry generated a recommendation of dismissal by FOIC Hearing Officer Victor Perpetua. But on a 3-1 vote, the commission remanded the case back to the hearing officer to gather further evidence. That evidence included testimony from Ms Hamilton and Mr Freedman, during a July 29, 2016 hearing, which appeared to sway Mr Perpetua and four of the five commission members adjudicating the case.

Upon consideration of the final record, the FOIC in part found that certain private electronic correspondence by Mr Freedman and Ms Hamilton that ended up on Ms Schierloh's Facebook post are public records, because the respondents are both deemed "public agencies," and subject to provisions of the FOI Act because they were both sitting elected members of the school board when the correspondence in question was transmitted and ended up on the social network post.

The commission found that evidence submitted included an e-mail chain that originated with the school board's attorney - transmitted by Mr Freedman; and "text messages among [school] board members" - transmitted by Ms Hamilton, which contained "electronic conversations among board members about then ongoing business of the board," the final ruling states.

The document also acknowledges that others may have received the electronic information in question prior to it being received by Ms Schierloh, and that discussions about the Facebook post included "members of the Newtown Legislative Council, a former member of the Board of Education," and other members of the public. The FOIC also found that according to the complainants, the electronic disclosure of the texts and e-mail "was a political act directed at members of the opposing party." Both Ms Hamilton and Mr Freedman were Republican elected members of the school board at the time of the incident.

Possible 'Forensic' Search

Ms Terry and Ms Roche, the FOIC concluded, should receive copies of the respondents communications so they can "ascertain the content of the e-mails ... and the individuals to whom the e-mails were sent."

Since the respondents did not, and have not produced those records, they were ordered to by the FOIC.

If either or both respondents decide to appeal, that process will play out over time and depending on the outcome, could result in the commission leveling individual fines against Ms Hamilton and Mr Freedman of $1,000 each - the maximum amount allowed under the FOI Act. Following the decision, Mr Hennick told The Newtown Bee that the commission could also require a "forensic" search for the records involving the respondents e-mail or text service providers.

Mr Hennick said such an order could represent the first time the FOIC has compelled respondents to produce such records from private e-mail or text service providers.

A fine would only occur, Mr Hennick said, if the respondents fail to produce the records, if Ms Roche or Ms Terry file a noncompliance complaint, and the commission decides to order the civil penalty.

"At this juncture, the matter is closed here and would only be addressed again if a new complaint is filed," Mr Hennick said.

'Evasive' and 'Non-Responsive'

Under questioning by the hearing officer, the respondents, according to the transcript, were found to be "evasive, and non-responsive, claiming not to remember or be able to explain their own actions, giving inconsistent answers ... and refusing to answer some questions at all."

A footnote indicates the respondents objected to the questions, in part, because one witness was a "whistleblower." And both said they refused to provide the electronic files "to protect the recipients." The hearing officer found those assertions to be "not credible."

It was also found that "the respondents either deleted, or declined to produce, or obtain from the recipients, the e-mails themselves, thereby withholding direct evidence of the content of the transmittals."

The FOIC found that it was "not credible," when both respondents "could not recall whether they themselves had participated in e-mail or text messages similar to the ones they revealed and claimed to be improper."

The FOIC additionally found it "an unusual and convenient coincidence that both respondents" said they "configured their e-mail systems to automatically delete all sent e-mails." And that testimony was "not consistent" with earlier statements that they "had previously deleted the record at issue long before it was requested." The commission went on to infer that "the respondents have something to hide."

The hearing officer went on to state that, in part, because of concerns related to the respondents' credibility, additional evidence, and additional findings, original findings made by Mr Perpetua that the transmissions were not public records, was incorrect.

Mr Hennick said the sole opposing commission member, Matthew Streeter, who voted against the final recommendation believed that the second hearing involving the respondents was not necessary, and as a result did not support the subsequent order to produce the transmittals.

Post Hearing Brief

In attorney Sommaruga's post-hearing brief, and in the respondents' defense, he states that, "Not withstanding the sound and the fury that has unfortunately been unleashed in these proceedings, the instant FOIC cases remain remarkably simple. Two then-Newtown Board of Education members (Respondents Kathy Hamilton and David Freedman) have admitted that they on their own released certain Board electronic communications (which they believe show wrongdoing by Board members in terms of violating the FOIA) to non-Board of Education members," which found their way onto Facebook.

The brief also concurs that the complainants wished to learn the identity of the recipients of those communications. Mr Sommaruga's brief contends that the hearing officer's final recommendations constitute "nine pages of character assassination, innuendo, illogical fact finding, and barren legal reasoning masquerading as a revised proposed final decision. "

The brief goes on to state that, "Because [the respondents] refuse the answer this one question [in order to protect the recipients from harassment], the Hearing Officer decided that he can draw every adverse inference possible, including some that strain credulity or are illogical. As a result of this mangling of the process, what should have been a straight forward case of determining whether the forwarding of certain electronic communications constitutes a public record has gone far afield."

The brief also asserts that "The instant cases concern the release of certain electronic Board of Education electronic communications. While the underlying electronic communications were public records, the releases of copies of them by the Respondents on their own do not constitute public records."

Responding to a question about whether his clients are inclined to appeal the final decision, Mr Sommaruga said he had no immediate comment.

Legal Compensation Provided

In a related matter, during a October 3 Board of Selectmen meeting, Selectmen Herb Rosenthal and Will Rodgers were presented with signed agreements between the town and the respondents, providing a total of $33,326 in compensation for their legal costs related to defending the FOI appeals.

A statement indicates that including that compensation, the town had expended $99,787 in legal expenses related to Ms Roche and Ms Terry's FOI appeals, and related Board of Ethics complaints that resulted in two hearings involving the conduct of Ms Hamilton and Mr Freedman.

The selectmen on October 3 also formally received letters from the respondents that were previously ordered. During a June 6 meeting, selectmen rejected a package of ethics board recommendations, and instead issued their own requests as previously reported in  Rebukes Ethics Board," June 10, 2016).The Newtown Bee ("BOS

Mr Freedman and Ms Hamilton were ordered to prepare and publish a statement acknowledging their handling of documents eventually published on social networks were "inappropriate and wrong-headed." The selectmen additionally require that Mr Freedman complete FOI training as a precondition of accepting any appointed or elected position in town government, and that Ms Hamilton should also complete an FOI workshop.

In his letter to selectmen, Mr Freedman states, "I still do not believe that my release of the ... e-mail in question was in violation of the Town's Code of Ethics or any other law." Ms Hamilton's letter makes a similar statement. Both acknowledge that they should have either sought advice, or filed appeals with the FOIC when they could not persuade their then-school board colleagues to stop conducting board business by texts and e-mails.