FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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| Burton M. Weinstein, |
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Complainant |
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against |
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Docket #FIC 1999-494 |
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Assistant Attorney
General, State of |
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Respondents |
May 10, 2000 |
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The above-captioned matter was heard as a contested case on January 10, 2000, 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. The respondent Office of the Attorney General’s Motion to Dismiss, dated January 10, 2000, requesting that the complainant’s appeal be dismissed as against the respondent Office of the Attorney General is denied. The respondent Office of the Attorney General contends that the complainant’s appeal was taken prior to the expiration of four business days from the October 14, 1999 date of the receipt of the complainant’s records request by the respondent Office of the Attorney General, and the date of the filing of the appeal, October 20, 1999.
3. Section 1-206, G.S. [formerly 1-21i(b), G.S.] provides in relevant part:
(a) Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request. Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.
4. Section 1-206, G.S. [formerly 1-21i(b), G.S.] does not require that a requester wait four business days following the receipt of a request by an agency before filing an appeal. Rather, §1-206, G.S. [formerly 1-21i(b), G.S.] simply provides a requester with the ability to file an appeal in the event an agency fails to respond to the request. After four business days have elapsed, if no response is received from an agency, then such non-response is deemed a denial for purposes of triggering the requester’s right to file an appeal without having to wait indefinitely for a response which may never be forthcoming. It is concluded therefore that the Commission has jurisdiction to hear the appeal as against the respondent Office of the Attorney General.
5. It is found that by letters dated October 8, 1999, the complainant requested that the respondent assistant attorney general and public health services manager provide him with access to the “entire investigation file of your respective departments on my complaint in behalf of the family and Estate of Londell King against American Medical Response” (“AMR”), (hereinafter “requested records”).
6. It is found that by letter dated October 14, 1999, the respondent department acknowledged receipt of the complainant’s request and indicated that “your request will be processed and you will be contacted when a determination has been completed.”
7. Having failed to receive the requested records, the complainant, by letter dated October 18, 1999 and filed on October 20, 1999, appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying him access to the requested records.
8. At the hearing on this matter, the respondents provided the complainant with one record that is responsive to the complainant’s request. However, there are other records, maintained by the respondents that they have not provided to the complainant, which records the respondents contend are exempt from disclosure pursuant to §1-210(b)(4) G.S. [formerly §1-19(b)(4), G.S.] and §1-210(b)(10) [formerly §1-19(b)(10), G.S.].
9. The records being claimed as exempt from disclosure have been submitted to the Commission by the respondents, and an in camera inspection was conducted. There are two sets of in camera records, the first set has been designated IC# FIC 1999-494-A through IC#1999-494-T, and the second, IC# FIC 1999-494-1 through IC# 1999-494-65.
10. Section 1-210(a), G.S.
[formerly §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 1-212.
11. It is concluded that the requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
12. Section 1-210(b)(4), G.S., [formerly §1-19(b)(4), G.S.], permits the nondisclosure of: “[R]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”
13. Section 1-200(9), G.S. [formerly §1-18a(9), G.S.] defines “pending litigation" to include “(C) the agency's consideration of action to enforce or implement legal relief or a legal right.”
14. It is found that the respondents are engaged in ongoing negotiations with AMR, in connection with the respondent department’s investigation of AMR concerning the death of Londell King.
15. It is found that IC# FIC 1999-494-A through IC#1999-494-T, and IC# FIC 1999-494-1 through IC# 1999-494-65, constitute records pertaining to strategy and negotiations with respect to the respondent’ consideration of action to enforce or implement legal relief or a legal right, within the meaning of §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.] and §1-200(9)(C), G.S. [formerly §1-18a(9)(C), G.S.].
16. It is therefore concluded that the in camera records are permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S. [formerly §1-19(b)(4), G.S.] and §1-200(9)(C), G.S. [formerly §1-18a(9)(C), G.S.].
17. It is therefore concluded that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.] when they failed to provide the complainant with the in camera records.
18. In light of the conclusion reached in paragraph 16, above, it is unnecessary to address the respondents’ further claim of exemption pursuant to §1-210(b)(10), G.S. [formerly §1-19(b)(10), G.S.].
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of
May 10, 2000.
_________________________
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:
Burton M. Weinstein
c/o Weinstein, Weiner, Ignal, Napolitano & Shapiro, P.C.
350 Fairfield Avenue – P.O. Box 9177
Bridgeport, CT 06601
Assistant Attorney General, State of
Connecticut, Office of the Attorney
General; State of Connecticut, Office
of the Attorney General; Public Health
Services Manager, State of Connecticut,
Department of Public Health, Health
Systems Regulation Division; and State
of Connecticut, Department of Public
Health,
Health Systems Regulation Division
c/o Peter L.
Brown
Assistant
Attorney General
55 Elm Street
Hartford, CT
06141-0120
__________________________
Melanie R. Balfour
Acting Clerk of the Commission