FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-323
May 28, 1997

In the Matter of a Complaint by Stephen F. Hennessey, Complainant
against
Ralph Marcarelli, Counsel to the Liquor Commission, State of Connecticut, Department of Consumer Protection; Liquor Control Division, State of Connecticut, Department of Consumer Protection; and State of Connecticut, Department of Consumer Protection Respondents

The above-captioned matter was heard as a contested case on March 10, 1997, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The case caption was modified to include the respondent counsel.

Docket #s FIC 1996-255, Stephen F. Hennessey v. Liquor Control Division, State of Connecticut, Department of Consumer Protection; and State of Connecticut, Department of Consumer Protection ("FIC 1996-255") and FIC 1996-279, Stephen F. Hennessey v. Liquor Control Division, State of Connecticut, Department of Consumer Protection; and State of Connecticut, Department of Consumer Protection ("FIC 1996-279"), were consolidated with the above-captioned matter for purpose of hearing. At the hearing, the parties agreed, and the hearing officer has addressed herein, the issues raised in FIC 1996-255 and FIC 1996-279.

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. It is found that by letter dated May 2, 1996, the complainant requested that the respondent department provide him with a copy of the last renewal or the original application for the Alewife restaurant in Glastonbury, Connecticut ( hereinafter "Alewife application" or "requested record").

3. Having failed to receive the Alewife application, the complainant, by letter dated May 31, 1996 and filed with the Commission on June 5, 1996, appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him a copy of the Alewife application. This appeal the Commission docketed as FIC 1996-255.

4. It is found that by letter dated June 6, 1996, the complainant again requested that the respondent department provide him with a copy of the Alewife application.

5. It is found that the respondent department received the June 6, 1996 request on June 12, 1996, and informed the complainant, by letter dated June 19, 1996, that "we are in the process of gathering the records you requested."

6. It is also found that the complainant, by letter dated July 3, 1996, requested that the respondent department provide him with the last renewal or the original applications for seventeen (17) business establishments (hereinafter "the other applications").

7. Having failed to receive the Alewife, and the other applications, the complainant, by letters dated July 2, 1996 and August 1, 1996, filed two more appeals with the Commission on July 10, 1996 and August 5, 1996, alleging that the respondent department violated the FOI Act. The two appeals the Commission docketed as FIC 1996-279 and FIC 1996-323, respectively. In his August 1, 1996 letter, the complainant requested that the Commission impose civil penalties upon the respondents.

8. It is found that the respondents maintain the Alewife and the other applications, and such applications are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

9. It is found that the respondents provided, and the complainant received all of the requested applications in September, 1996.

10. Section 1-19(a), G.S., provides in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

11. The respondents concede that they delayed in providing the complainant with a copy of the requested applications. However, they contend that a state ethics code prohibition precluded their disclosure of the applications to the complainant, an ex-employee of the respondent department.

12. It is found that the respondents failed to prove that any federal or state law precluded them from promptly disclosing the requested applications to the complainant.

13. It is therefore, concluded that the respondents violated § § 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with a copy of the requested applications.

14. With respect to the May 2 and July 3, 1996 requests, described in paragraphs 2 and 6 of the findings, above, the respondents contend that such requests were never received by them.

15. It is found that it cannot be definitively established from the record whether the complainant’s May 2 and July 3, 1996 requests were received by the respondents.

16. At the hearing on this matter, the complainant also raised, and the respondents addressed, the issue of the respondents’ failure to promptly respond to an April 25, 1996 request for records from Jan Trendowski. The April 25, 1996 request does not indicate that it was being made on behalf of the complainant, and the complainant denied any involvement in the making of such request.

17. It is therefore, concluded that the Commission lacks jurisdiction to address the April 25, 1996 request because the complainant cannot enforce Trendowski’s rights, if any, under the FOI Act, and Trendowski has not appealed to this Commission alleging a violation of any such rights under the FOI Act.

18. The Commission in its discretion declines to impose a civil penalty in this matter.

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

Henceforth the respondents shall strictly comply with § § 1-15(a) and 1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 28, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

Stephen F. Hennessey
PO Box 117
Riverton, CT 06065

Ralph Marcarelli, Counsel to the Liquor Commission, State of Connecticut, Department of Consumer Protection; Liquor Control Division, State of Connecticut, Department of Consumer Protection; and State of Connecticut, Department of Consumer Protection
c/o Ralph Marcarelli, Esq. and Anna M. Carbonaro, Esq.
Counsel to the Liquor Commissioner
Department of Consumer Protection
165 Capitol Avenue
Hartford, CT 06106-1630

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-323/FD/eal/06041997