The following is a two part report concluding our investigation into the New Haven Department of Traffic and Transportation.
Tastie Fish received an information disclosure from the city of New Haven late Friday evening in response to a FOIA request for records.
We have published the email portion of the disclosure.
After a report on Monday, indicating that Doug Hausladen mispresented the facts, city hall pushed back on our inquiry, informing this magazine the revenue audits we have been seeking do not exist.
Even though a high level source had indicated to us that the revenue files(which we have asked for numerous times) from the software contractor are readily accessible.
Over the course of an exchange, it was established that our language was not applicable, that the term “audits” do not meet the general definition per the terms of the contract, accounting and auditing are two different financial operations according to Attorney Foster.
It could be.
Attorney Foster believes that “confusion spilled over into our FOIA requests”.
Kathleen Foster denied our request earlier this week because “such records do not exist”, of course our sources had informed our newsroom otherwise, but Attorney Foster explained the disconnect was in our language.
Tastie Fish has published numerous reports defining the nature of the files we have been seeking, it’s not a secret to anyone that has followed the story.
We have been seeking the original revenue files from the various contractors for months, it’s all in black and white.
Within the information disclosure released to us is several instances of this magazine defining what we mean by audits, so the confusion that was communicated to us is rational, but we don’t understand how it’s possible.
Because we used the word audits, it appears the DOT and the City Corporation Attorney did not totally understand what we were seeking.
Neither did we evidently.
Under that premise, Mr. Hausladen did not misrepresent the facts when he told us in an email May 11th that he did not know what the audits look like, or how accessible they were.
Perhaps that’s true.
Even though we made it clear an endless amount of times in the last four months that we were seeking the revenue files from the software contractor, furthermore, there is communications in the emails that make such a claim questionable.
There is examples of us defining what we want in the PDF the DOT released to us Friday afternoon.
You have to remember, Mr. Hausladen didn’t remember his twitter rant either when we asked him about it, he also claimed he didn’t remember the records being released in April when there is 21 emails in the disclosure that make that very unlikely.
It’s difficult to forget any work related situations that requires that many individuals to work on the same project, especially when you receive at least 21 emails about it, and a local news outlet is publishing a series of stories on it.
More on the that in PT 2.
We explained in a bit more detail the type of files we were seeking, and Attorney Foster directed us to the attention of the DOT.
They then released the revenue files that we will discuss in our conclusion.
Michael Pinto forwarded us the disclosure Friday evening, and for the first time, we have a look at what was going on at the DOT over the course of our investigation.
The emails reveal a flurry of government activity in wake of our SECOND FOIA request in April, there was internal confusion at the DOT in regards to how to respond to our request because the records were publicly available, and the DOT did not want to expend “man hours” if the data was already accessible.
The emails indicate that a FOIA request for revenue records was a process the current administration had little previous experience with, at least that’s how all of the formative commentary comes across.
Our FOIA request caused some commotion.
Michael Pinto inquired about a potential exemption, but ultimately went about producing the records, which has proven to be an important component of the disclosure for a variety of reasons.
Michael Pinto has some legal questions to answer himself.
Despite the language in Doug Hausladen’s letter, the email communications that were released do not actually address the entire window of time that has elapsed since our first FOIA request on April 12th.
A review of the emails does not show any internal communication within the DOT in regards to our initial request, there is no emails to Kathleen Foster, there is nothing after Mr. Pinto sent us this.
This email is a documented breach of the Freedom Of Information Act per the legislation, and since there is no records of Michael Pinto checking with government officials before producing this message, there is no present counter argument that could debunk this documented breach of the legislation by a government official.
You have to remember, Attorney Foster informed Tastie Fish after the above email that she is not the custodian of the records, and had no idea why Mr. Pinto would direct us to her office
This implies Mr. Pinto was not fully aware of the laws surrounding the legislation before he breached it.
There is more evidence of this.
In email exchanges a week later, Mr. Pinto specifically seeks advice on how to deal with the Tastie Fish FOIA request, and is talked out of an exemption by Attorney Foster.
It’s difficult to believe Mr. Pinto would go to the trouble of learning the same information twice, the evidence indicates he breached the FOIA unilaterally, but our newsroom believes that he did so at the behest of a superior.
We just don’t know who that superior is.
The FOIA act can be breached without penalty if you make it right, which Mr. Pinto did.
There is only one such breach that is considered criminal, per article 77 of the legislation, only the hiding, altering, or the destruction of public records in response to a FOIA request is considered a criminal offense.
Because our FOIA request was filed on April 12th, 2017, and there is no government communications within the disclosure before April 18th, Tastie Fish has questions about why exactly Mr. Pinto would take this action with no direction from Doug Hausladen, or Kathleen Foster.
We also are assuming there was no communications during that time period, because if there is, that is technically a criminal offense according to the law.
We find it unlikely Mr. Pinto would take such drastic action on his own accord based on the professional nature of his communications, but we do find it odd that there is no records surrounding his decision on April 13th, or thereafter.
The email dump was incomplete, a fact that was acknowledged and explained by DOT director Doug Hauladen.
In his Letter confirming the satisfaction of our request, Mr. Hausladen cited legal privilege as his basis for withholding what we believe to be a considerable amount of email communications that are relevant to this story.
On it’s face, legal privilege pertains to communications between between a legal advisor, and his client.
Such a right is enforced by the client.
In the context of a FOIA request, the agency is the client, and the agency lawyers are the attorney according to RCFP.com.
There is ways around such a claim legally.
“In the FOIA context, “an agency can be a ‘client’ and agency lawyers can function as ‘attorneys’ within the relationship contemplated by the privilege
You may challenge a withholding under this privilege by showing that the information exchanged between the attorney and client was not confidential; that is, that the agency failed to “show that it supplied information to its lawyers ‘with the expectation of secrecy and [the information] was not known by or disclosed to any third party.’”109
If an agency disseminates materials within the agency, it must be only to those “who are authorized to speak or act for the organization in relation to the subject matter of the communication,” that is, only those agency personnel who “need to know.”
Based on the letter of the law, and conversations we have had in the last 24 hours, Tastie Fish is going to challenge the assertion of privilege.
The documents that were forwarded to us Friday afternoon are exhibit A.
Let us explain.
Mr. Hausladen is asserting privilege, but the law requires that privilege actually be observed if it’s going to be enforced.
It’s not a sometimes kind of thing, it’s either all the time, or not at all.
Below is one of the emails that was forwarded to this magazine, it depicts a conversation between Deputy Director Michael Pinto, and city attorney Kathleen Foster.
He is directly asking for legal advice, which is fine, but based on Mr. Hausladen’s argument, we should not have access to that email, furthermore, there is government officials copied on the emails that are not actually authorized to speak for the city in regards to the request, nor did they.
Any claim of privilege is wiped out by this email(and others) in our opinion, in revealing legal advice distributed by Kathleen Foster involving finance officials, Mr. Hausladen nullified his own argument.
The gap in the communications is considerable, and all over the map.
April 12 to April 18th, May 11th to June 9th, June 9th June 26th, June 26th to July 17th.
There is only a handful of emails on the record after May 11th.
There is one email concerning our interview with Mr. Hausladen on June 9th, but the chain is incomplete, our email exchange concerning the interview with communications officerLaurence Grotheer on May 30 proves it, because if this disclosure was complete, our email exchange on May 30th would be within it.
There is also very little communication between Michael Pinto, and Doug Hausladen, no personal opinions, no reaction to our reporting, no basic human emotions as the investigation was heating up, they hardly interact at all through email.
Over the course of a 4 month investigation, there is only 2 emails between Deputy Director Michael Pinto, and DOT Director Doug Hausladen, the two leaders of the department under investigation.
That strains credulity, it is what it is.
We are curious about those emails if they do exist, because they certainly are not protected by privilege, and federal law does does not allow government records to be withheld or hidden on a whim.
Tastie Fish is unsure if government business can be conducted on private email servers, nor do we intend to find out, perhaps Hillary Clinton has the answer.
This information dump was professionally done, there was great care taken in how it was presented, and how the machinations of the government unfolded as the questions surrounding revenue evolved.
But the document is nonlinear, jumbled, anayzling it went beyond transcription, it was more like putting together a jigsaw puzzle.
There is also patches of the narrative that are missing.
Was that intentional?
Most likely not, but it made it exceedingly difficult to establish a timeline, cross reference our communications, and develop a picture of what happened.
The emails that were released reveal an honest effort to respond to our request.
The office of Management and Budget was involved from the beginning, there was an extensive effort on the part of the DOT to ensure the records were both accurate, and disseminated in a timely fashion.
The records turned over to us were confirmed via monthly financial reports, the process to produce the records was iron clad, and featured coordination between the DOT, the department of finance, the internal auditor, and the city corporation counsels office.
A source with direct knowledge of the office of Traffic and Transportation had told Tastie Fish 2 weeks ago that the records “appear to be consistent with what I remember”.
The DOT released expanded financial records to Tastie Fish Friday afternoon.
We will publish those numbers in the sequel to this report, along with an update of legal argument surrounding the missing emails.
Please check back with us for PT 2