FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Pamela A. Bashar,
Complainant
against Docket #FIC 91-392 & Docket #FIC 92-13
Deborah Onderko, Shelton Tax Collector; Mark Lauretti, Mayor of Shelton; and Louis Marusic, Shelton Finance Director,
Respondents December 9, 1992
The above-captioned matters were consolidated and heard together as contested cases on January 29, March 20 and April 24, 1992, at which time the complainant and the respondents 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 and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By Notice of Appeal filed December 19, 1991 and assigned Docket #FIC 91-392, the complainant appealed to the Commission, alleging that the respondents failed to provide her with copies of certain records.
3. Specifically, the complainant alleged that the respondents failed to provide her with a copy of the City's "lock box procedure" which she need to perform her duties as City Treasurer.
4. By Notice of Appeal filed January 3, 1992 and assigned Docket #FIC 92-13, the complainant filed a related complaint, alleging that the respondents failed to provide here with the "specific format instructions for the magnetic tape service" associated with the lock box procedure referenced in paragraph 3, above.
5. It is found that the complainant is the elected Treasurer for the City of Shelton.
6. It is found that the lock box procedure is a document describing the processing instructions by which a bank picks up the City's tax receipts and returns processed documents to the City.
Docket #FIC 91-392 & Docket #FIC 92-13 Page 2
7. It is found that direct custody of the lock box procedure is maintained by the respondent Tax Collector, who works under the direct supervision of the respondent Finance Director.
8. It is concluded that the lock box procedure is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
9. It is found that the complainant orally requested a copy of the lock box procedure on or about November 26, 1991 from the respondent Tax Collector.
10. It is found that the complainant also requested in writing a copy of the lock box procedure from the Tax Collector, with copies of her request sent to the respondents Mayor and Finance Director, on or about December 5, 1991.
11. It is found that the complainant repeated her written request on December 11, 1991 to the Tax Collector, again with copies of her request sent to the Mayor and Finance Director.
12. It is found that the complainant also communicated her request orally to the Mayor.
13. It is found that both the Mayor and Finance Director knew of the complainant's requests and the fact that her requests had not been complied with.
14. It is also concluded that both the Mayor and Finance Director had the authority to direct the Tax Collector to provide the complainant with the requested document, and declined to exercise that authority.
15. It is found that the respondent Finance Director arranged a meeting with the respondent Tax Collector and the complainant Treasurer that took place on December 13, 1991, at which time the Finance Director directed the Tax Collector not to comply with the complainant's request until he had reviewed the document.
16. It is found that the complainant repeated her request for the lock box procedure, and also requested a copy of the specific computer magnetic tape format instructions needed to implement the procedure, by a memorandum sent on December 19, 1991.
17. It is found that the complainant needed the lock box procedure in order to arrange for similar arrangements to be made for the processing of tax receipts at the bank of her choosing.
18. It is found that the complainant's need for the procedure was immediate, because arrangements would have to be made in what was then mid-to-late December for the year beginning January 1, 1992.
Docket #FIC 91-392 & Docket #FIC 92-13 Page 3
19. It is found that the respondents were aware of the complainant's immediate need for the requested document.
20. It is found that the respondents opposed the complainant's choice of a bank to process tax receipts.
21. It is found that the respondents withheld the requested documents from the complainant until December 18, 1991.
22. It is found that the respondents provided a copy of the requested document on December 18, 1991, but that the document provided did not include the computer magnetic tape format instructions necessary to implement it.
23. It is found that the respondents did not provide a printout of the computer instructions until the hearing on this matter on January 29, 1992.
24. It is found that the respondents made their own arrangements with the bank of their choosing largely without the complainant's knowledge and entirely without the complainant's participation.
25. At the hearing, the complainant requested the imposition of civil penalties against the respondents.
26. It is found that the respondents never made any claim, either before, during or after the hearing in this matter, that the requested lock box procedure was in any way exempt from disclosure.
27. The respondents moved to dismiss the complaint on the grounds that computerized information was not subject to the FOI Act.
28. It is concluded, however, that the printout of the computerized information provided to the complainant is expressly subject to the FOI Act, pursuant to the provisions of 1-19a, G.S.
29. The respondents' motion to dismiss is therefore denied.
30. It is also concluded that the respondents claim that the printout of computerized information was not subject to the FOI Act was not a good faith defense to the complaint.
31. In addition, although the respondents maintain that they intended to meet the complainant's requests and did so reasonably and promptly, it is expressly found that the testimony of all three respondents was in many respects not credible.
Docket #FIC 91-392 & Docket #FIC 92-13 Page 4
32. It is found that in actuality the respondents withheld the requested documents from the complainant for the sole purpose of interfering with her attempt to make alternative banking arrangements.
33. The respondents maintain that because the complainant never labeled her requests as Freedom of Information Act or "FOIA" requests, and because her written requests were in the form of memoranda, that such requests were not reasonably understood as requests based on the complainant's rights under the FOI Act.
34. It is concluded, however, that the complainant's rights under the FOI Act are unaffected by whether or not she expressly asserts the statutory basis for her rights.
35. It is also concluded that the rights guaranteed by the FOI Act apply with equal force to public officials as to private persons, and that one purpose of the FOI Act is to prevent public officials from withholding public records for political or partisan purposes.
36. It is concluded that the respondents violated 1-15 and 1-19(a), G.S., by failing to provide, promptly upon request, the requested documents.
37. It is also concluded that the respondents violated the FOI Act without reasonable grounds.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. A civil penalty pursuant to 1-21i(b), G.S., in the amount of One Hundred Dollars ($100.00) is imposed jointly and severally upon the respondents. The respondents shall remit this penalty to the Commission within thirty (30) days of the date of issuance of the final decision in this matter.
2. Henceforth the respondents shall strictly comply with the requirements of 1-15, 1-19(a) and 1-19b, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 9, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 91-392 & Docket #FIC 92-13 Page 5
PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Pamela A. Basher
c/o Attorney John P. Basher
Basher & Green
Suite 103
80 Ferry Boulevard
Stratford, CT 06497
Deborah Onderko, Shelton Tax Collector, Mark Lauretti, Mayor of Shelton; and Louis Marusic, Shelton Finance Director
c/o Attorney Fred J. Anthony
Assistant Corporation Counsel
54 Hill Street
Shelton, CT 06484
Debra L. Rembowski
Acting Clerk of the Commission