FIC1999-252

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			FINAL DECISION
Jeffrey J. Lewczyk,
		Complainants
	against		Docket #FIC 1999-252
Freedom of Information Officer, State of Connecticut, Department of Public Health, Office of Special Services, Communications Office; and State of Connecticut, Department of Public Health, Office of Special Services, Communications Office,
		Respondents	November 10, 1999

The above-captioned matter was heard as a contested case on July 22, 1999 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 §1-200(1), G.S., (formerly §1-18a(1), G.S.).

2. It is found that by letter dated February 25, 1999, the complainant requested that the respondents provide him with a copy of certain Department of Public Health (“DPH”) records (hereinafter “requested records”). Specifically, the complainant requested the following records for particular time periods:

a. BOSS employee attendance reports;

b. Employee time sheets and/or employee attendance cards showing the certified signatures;

c. hourly pay rates or salary rates, as applicable, from the employee payroll records;

d. all Laboratory Division administrative sign-out sheets;

e. DPH’s regulations and/or protocol for verifying accuracy of all work-time records (chain of authority for certifying the veracity of records, and individuals required to sign off on records or reports); and

f. DPH’s regulations and/or standard for implementing and removing medical certificate status.

3. It is found that upon receipt, the respondents forwarded the complainant’s request to their counsel because there is a lawsuit involving the complainant and the respondents currently pending in federal court (hereinafter “lawsuit”).

4. It is found that upon receipt of the complainant’s request, counsel for the respondents assumed that such request was an attempt on the part of the complainant and/or the complainant’s attorney to circumvent the discovery process in the lawsuit, which process had been closed for approximately two months. Counsel for the respondents thereafter filed a motion for protective order with the court on March 15, 1999 to preclude disclosure of the requested records, which motion was not ruled on by the court, as of the date of the hearing in this matter.

5. Having failed to receive the requested records, the complainant, by letter dated April 23, 1999 and filed on April 28, 1999, appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondents violated the FOI Act by denying him a copy of the requested records.

6. Upon receipt of the April 23, 1999 appeal, the Commission informed the complainant that such appeal was defective as it was not filed within thirty days of the alleged violation.

7. The complainant then, by letter dated May 7, 1999, renewed his request to the DPH for the requested records.

8. The respondents, by letter dated May 14, 1999, denied the May 7, 1999 request indicating that “these documents are the subject of a pending motion of protective order. You may wish to consult with your attorney regarding the status of that motion.”

9. Having failed to receive the requested records, the complainant, by letter dated May 21, 1999 and filed on May 26, 1999, appealed to the Commission, alleging that the respondents denied him a copy of the requested records.

10. It is found that the respondents maintain the requested records and such records are public records within the meaning of §1-210(a), G.S., (formerly §1-19(a), G.S.).

11. Section 1-210(a), G.S., (formerly §1-19(a), G.S.), provides in relevant part that:

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 a 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 1-212. [Emphasis added.]

12. At the hearing on this matter, the respondents indicated that they are at present willing to provide the complainant with a copy of all of the requested records.

13. It is found that the respondents failed to prove that any federal law or state statute permitted them to withhold the requested records and to not disclose such records “promptly” to the complainant.

14. It is therefore, concluded that the respondents violated §1-210(a), G.S., (formerly§1-19(a), G.S.), when they failed to provide the complainant with a copy of the requested records “promptly”.

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

1. Forthwith, the respondents shall provide the complainant with a copy of all of the requested records.

2. In complying with paragraph 1 of the order, the respondents (a) shall conduct a complete and thorough search of their records and (b) shall provide the complainant with an affidavit attesting to the fact that such search was carried out and that all of the requested records maintained by them have been provided to him.

Approved by Order of the Freedom of Information Commission at its regular meeting of

November 10, 1999.

_________________________

Melanie R. Balfour

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:

Jeffrey J. Lewczyk

56 Sycamore Street

Windsor, CT 06095

Freedom of Information Officer, State of Connecticut, Department of Public Health,

Office of Special Services, Communications Office; and State of Connecticut, Department of Public Health, Office of Special Services, Communications Office

c/o Atty. Tanya Feliciano

Assistant Attorney General

55 Elm Street

Hartford, CT 06106-1774

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1999-252/FD/mrb/11101999