FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

David J. Ryffel,

Complainant

against Docket #FIC 88-95

Fairfield Town Attorney Roy Ervin,

Respondent August 24, 1988

The above-captioned matter was heard as a contested case on May 5, 1988, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. In 1914 the Town of Fairfield entered into a long-term agreement to lease certain property to the Fairfield Country Club.

3. In 1984, questions were raised regarding the ownership of the property leased to the country club, with at least one theory holding that the town never owned the property. As a result, an investigation was begun and title searches were conducted.

4. On March 1, 1988 the complainant telephoned the respondent and, in a message left with the respondent's secretary, requested copies of communications with attorneys and anyone else regarding the Fairfield Country Club, in particular an agreement with Paul Shafer, the country club's attorney.

5. On or about March 1, 1988 the complainant sent to the office of the Fairfield first selectman five copies of a written request for records relating to the Fairfield Country Club "with regards to land holdings having disputed ownership."

6. The complainant's request indicated that it was directed to the respondent, the first selectman and the tax assessor of the Town of Fairfield and to "all others having knowledge of or possession of" such records. The respondent does not have an office in the Fairfield town hall.

Docket #FIC 88-95 Page Two

7. In his letter of request the complainant stated that he had already been provided with certain records and made reference to certain others which had not yet been provided, noting that "I specifically look for a copy of an agreement between Town attorney Ervin and the Country Club attorney, Paul Shaffer [sic]."

8. In response to the complainant's request the office of the first selectman compiled 302 pages of documents relating to the Fairfield Country Club, including documents authored by the respondent.

9. On or about March 14, 1988 the first selectman, on behalf of the complainant, asked the respondent to provide the complainant with correspondence from the previous 5-6 years between the respondent and the town regarding the country club. Such request was prompted by a telephone call from the complainant.

10. On March 17, 1988 the complainant spoke directly to the respondent, asking for correspondence relating to the respondent's participation in the matter of the Fairfield Country Club. The respondent stated that he did not have any such correspondence.

11. By letter of complaint filed with the Commission on March 21, 1988 the complainant appealed the respondent's failure to provide the requested records. The complainant requested the imposition of a civil penalty against the respondent.

12. On or about March 31, 1988 the respondent forwarded to the complainant, through the first selectman, copies of three letters concerning the Fairfield Country Club.

13. At hearing, the respondent requested the imposition of a civil penalty against the complainant.

14. The respondent claims that because he was away from his office from the date of the complainant's initial request until March 10 or 11, 1988, he was not immediately aware of the request, and that upon becoming aware of the request he also became aware that the first selectman's office was compiling several hundred documents in response thereto.

15. It is found that no agreement between the respondent and Paul Shafer, as referenced by the complainant in his March 1, 1988 request, exists.

Docket #FIC 88-95 Page Three

16. The respondent claims that, based upon the language quoted at paragraph 7, above, he construed the request, with respect to him, as a request only for an agreement with Paul Shafer. Because no such agreement existed, the respondent claims he believed he had no responsibility to respond.

17. The respondent further claims that the three letters provided to the complainant through the first selectman are the only ones in his possession which relate to the subject of the Fairfield Country Club issue.

18. The respondent stated at hearing that his file on the country club property was open to the complainant for his review and that the file had already been reviewed by at least one other member of the public.

19. It is found that the complainant's request for records was somewhat imprecisely drafted and subject to interpretation. Compounding the potential confusion was the fact that the request was directed to several town officials or employees as well as to "all others" who might have any of the requested records in their possession.

20. It is found, under the circumstances, that the interpretation advanced by the respondent at paragraph 16, above, was not an entirely unreasonable one. Furthermore, the respondent had reason to believe that other documents in his files which might have related to the country club would be provided by the first selectman from her duplicate file, as in fact they were.

21. It is found, however, that the respondent failed to respond in any way to the complainant's request for records, in violation of §1-21i(a), G.S.

22. It is also found that the respondent failed to provide records in a timely manner, even after being advised of the scope of the request, in violation of §§1-15 and 1-19(a), G.S.

23. The Commission, however, declines to impose a civil penalty against the respondent, as requested by the complainant.

24. At hearing the respondent offered evidence to support his claim that the complaint was taken frivolously, without reasonable grounds and solely for the purpose of harassing him, within the meaning of §1-21i(b), G.S.

25. It is found, however, that at the time the complaint was filed there was pending a request for records to which the respondent had failed to reply.

Docket #FIC 88-95 Page Four

26. Under such circumstances, the complaint cannot be considered to have been taken frivolously, without reasonable grounds and solely for the purpose of harassing the respondent within the meaning of §1-21i(b), G.S.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The respondent shall, within one week of the mailing of the Notice of Final Decision in the above matter, conduct a search of his file on the Fairfield Country Club and shall, within ten days of such mailing, provide the complainant with copies of any documents which were not part of the first selectman's files and would not have been provided to the complainant as a result of the first selectman's efforts. If no such documents exist, the respondent shall, within such ten days, provide the complainant with an affidavit so stating.

Approved by order of the Freedom of Information Commission at its special meeting of August 24, 1988.

Catherine H. Lynch

Acting Clerk of the Commission