Former Public Utility Regulatory Authority chief Marissa Gillett is appealing a $2,500 fine by the Freedom of Information Commission, arguing among other things that if the authority’s response to an industry records request was deficient, it was the responsibility of the lawyer to whom she delegated the matter.
In her appeal of the unusually high fine, Gillett asserts that PURA general counsel Scott Muska, who already faces professional discipline in a related public records matter, “was in charge of managing the agency’s response to the FOIA request.”
“The record establishes that: Attorney Muska – not Gillett – was directly responsible for managing the response to the FOIA request: Muska received the request, communicated with complainant’s counsel, and independently made all judgment calls regarding searches and responsiveness,” the appeal, dated January 29, said.
“There is no evidence that Gillett personally directed any aspect of the FOIA response, instructed Muska or other staff to withhold documents, or otherwise personally failed to comply with the Freedom of Information Act.”
In a December order, the Freedom of Information Commission took the unusual step of increasing a fine imposed on Gillett to $2,500 from the originally recommended $1,000 for failing to conduct a meaningful search for records of PURA policies and decisions requested by Eversource.
At the time of the records request Eversource and United Illuminating were trying to obtain authority records that would support an industry suit accusing the authority, under Gillett’s direction, of intentionally violating law and policy in ways that resulted in the imposition of flawed regulatory rulings.
The FOI Commission found that PURA failed in a variety of ways to conduct a “reasonable and diligent” search for a substantial number of internal policy directives, emails and other records that Eversource subsidiary Connecticut Light and Power asked more than a year ago..
The commission, in its decision imposing the fine, was particularly critical of Muska, who was described as controlling the records search.
Among other things, the commission said Muska, chose not to seek assistance from colleagues who might have knowledge of the requested records, failed to seek assistance from information technology experts and failed to search the electronic devices, such as cell phones, of PURA employees who used personal phones for work-related business and who, like Gillett, admitted deleting correspondence.
The commission said some of Muska’s decisions regarding the record search “were not reasonable” and “were made without any basis in law or fact.”
At the time the fine was imposed on Gillett, Assistant Attorney General James B. Zimmer, who was defending PURA in the FOI case, suggested Gillett was being unfairly targeted because the search for records sought by the utility was supervised by Muska.
FOI Commission executive director and general counsel Colleen M. Murphy said that, as PURA chairman, Gillett delegated the search to Muska and is responsible for its results.
Gillett resigned as PURA chairman in October, after experiencing an erosion of political support. A month later, Superior Court, Judge Matthew Budzik, ruling in a gas company rate appeal, issued a decision affirming the utility complaints and concluded that PURA decision-making had violated the law under her leadership.
Budzik could end up hearing Gillett’s appeal of the $2,500 fine as the judge assigned to the state court system’s administrative docket. In his decision upholding the utility complaints, he faulted PURA for failing for months to comply with his order to produce records of an auto deletion program on Gillett’ telephone that destroyed text message exchanges with legislators.
In the November decision, Budzik referred Muska to an agency that disciplines lawyers to determine if or how he was involved in what the court characterized as an intentional effort by PURA to keep him from learning about the deletion of the text messages.
Last week, the utility industry withdrew a second appeal to the Freedom of Information Commission after the new PURA leadership acknowledged that it had failed to produce more than 100 pages of relevant email communications and other records sought in that search.
The utilities currently have a third records appeal pending before the commission.