FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Fred S. O'Donnell,

Complainant

against Docket #FIC 92-317

Robert McKeon, Chief, Occum Fire Department,

Respondent May 26, 1993

The above-captioned matter was heard as a contested case on April 5, 1993, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The original caption for this case has been changed to correctly identify the respondent.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. By letter of complaint dated October 8, 1992 and filed with the Commission on October 13, 1992, the complainant alleged that the respondent failed to comply with his written records requests. In his complaint, the complainant requested the imposition of a civil penalty against the respondent.

2. It is found that by letters dated March 23, July 8, and September 2 and 16, 1992, the complainant requested copies of the following documents pertaining to a fatal fire that occurred on January 11, 1992 at 38 Railroad Avenue in Occum, Connecticut (hereinafter "the fire"):

(a) the initial and final investigative reports

(hereinafter "investigative reports");

(b) "902 reports" to the state fire marshal

(hereinafter "902 reports");

(c) narrative and interim reports (hereinafter

"narrative reports");

(d) fire department run reports and related

documents (hereinafter "run reports");

and

Docket #FIC 92-317 Page 2

(e) news releases, correspondence, or statements

pertaining to evidence recovered from the fire

scenes, including photographs or videotapes taken

by, or recovered from witnesses to, or bystanders

at the fire (hereinafter "evidence").

3. It is found that at the time of the records request, the state's attorney's office was pursuing a criminal investigation into the fire.

4. It is found that the state's attorney's criminal investigation was suspended in August of 1992, at which time the Norwich Fire Marshal's office (hereinafter "fire marshal"), provided the complainant with the records identified in paragraphs 2(a), 2(b), 2(c) and 2(e) of the findings, above.

5. The complainant conceded that he received copies of all documents concerning the fire in the fire marshal's custody. However, the complainant argued that the records requests which are the subject of this complaint were made to the respondent Occum Fire Department, not the fire marshal.

6. It is found that only the respondent has custody of the requested run reports listing the names of the firefighters who responded to the fire scene.

7. For purposes of these proceedings, the only records at issue were the run reports and related documents identified in paragraph 2(d) of the findings, above.

8. At the hearing the respondent provided the complainant with a copy of the run report at issue.

9. However, the respondent was unable to unequivocally state that no additional documentation concerning the fire exists in the department's files.

10. Additionally, at the hearing, the respondent claimed that notwithstanding his disclosure of a copy of the run report, his department is a private entity not subject to the provisions of the Freedom of Information Act (hereinafter FOI Act"), because his department is a volunteer fire department.

11. The respondent also argued that he informed the complainant at the time of his requests that the records which he requested from him could properly be obtained from the fire marshal's office because that entity conducts fire investigations.

Docket #FIC 92-317 Page 3

12. It is found that the respondent's funding derives from municipal and private sources, and the respondent is subject to the same state laws and regulations that control and define fire suppression activities by other municipal fire departments, including the Norwich Fire Department.

13. It is found that the respondent's department is housed on property owned by the Town of Norwich (hereinafter "town").

14. It is also noted that the respondent was represented at the hearing on the contested case by counsel for the fire marshal, who is also counsel for the town.

15. It is therefore concluded that the respondent receives financial resources from the town and is subject to significant government involvement and regulation.

16. It is found that the respondent's department exists because the Norwich Fire Department does not provide fire services to the Occum area.

17. Specifically, it is found that at a meeting held by the Norwich Board of Selectmen on August 4, 1943, "it was unanimously voted that the fire department situated in Occum in [Norwich], be accepted as a regular [t]own fire department."

18. It is therefore concluded that the respondent was created by a governmental entity with the express acknowledgement that it would carry out a governmental function by providing fire services to the town's Occum area.

19. It is concluded that the respondent is a public agency for purposes of application of the FOI Act under the test set forth in Connecticut Humane Society v. FOIC, 218 Conn. 757 (1991), and therefore the requested records are public records within the meaning of 1-18a(d), G.S.

20. It is further concluded that the respondent violated 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with copies of all of the requested records in his possession.

21. The Commission declines to impose a civil penalty against the respondent.

Docket #FIC 92-317 Page 4

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

1. The respondent shall forthwith diligently search the department's files for additional records concerning the fire, not heretofore provided to the complainant, and provide copies of such records without charge to the complainant. If no additional records are found to exist, the respondent should notify the complainant in writing that no such additional records were found.

2. Henceforth the respondent shall comply with the provisions of the FOI Act.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 1993.

Debra L. Rembowski

Acting Clerk of the Commission

Docket #FIC 92-317 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:

Fred S. O'Donnell

P.O. Box Drawer E

Mystic, CT 06355

Robert McKeon, Chief, Occum Fire Department

c/o Atty. Konstant Morell

121 Broadway

Norwich, CT 06360

Debra L. Rembowski

Acting Clerk of the Commission