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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Steven Edelman, |
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Complainant |
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against |
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Docket #FIC 1999-591 |
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Donald
W. Schultz, Building Official, |
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Respondents |
May 24, 2000 |
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The above-captioned matter was heard as a contested
case on February 24, 2000, at which time the complainant and the respondent
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 respondent is a public agency within the meaning of §1-200(1),
G.S. [formerly §1-18a(1),
G.S.].
2.
By letter dated
December 2, 1999, the complainant made a request to the respondent official
for access to inspect “all applicable codes” and “the code” as
referenced in paragraph B1 of the Town of Windham, Board of Selectmen
Resolution No. 766.
3.
By letter dated
December 8, 1999, the respondent responded to the complainant by stating that
his request involved a legal interpretation and suggested that the complainant
seek the counsel of an attorney.
4.
By letter dated
December 9, 1999 and filed on December 13, 1999, the complainant appealed to
this Commission alleging that the respondent violated the Freedom of
Information (“FOI”) Act by failing to comply with his December 2, 1999
request. The complainant
requested the imposition of a civil penalty.
5.
Section 1-210(a), G.S.
[formerly §1-19(a),
G.S.], provides in relevant part that:
“[e]xcept
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 receive a copy of such records
in accordance with the provisions of section 1-212.
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.”
6. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”
7. It is found that, to the extent the requested records exist, they are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
8. It is found that the Town of Windham, Board of Selectmen Resolution No. 766 is entitled “Policies and Procedures for Building, Housing Code, Engineering, Planning and Development Activities” and pertains to all of the departments named therein.
9. It is found that paragraph B1 of Resolution No. 766, as described in paragraph 2, above, is entitled “Penalties for Failure to Secure Permit” and provides as follows:
“Where work for which a permit is required and is initiated prior to obtaining said permit, a penalty fee shall be collected equal to and in addition to the amount of the permit fee. The penalty fee shall be collected whether or not a permit is subsequently issued. The payment of such penalty fee shall not relieve the responsible party from compliance with all applicable codes, or from any other penalties for violation of the code.” (emphasis added)
10. It is found that there are rules, regulations, codes and ordinances that pertain to each department collectively and/or individually and that the applicability of the rules, regulations, codes or ordinances depends upon the type of work being done and on the type of permit requested.
11. It is found therefore that “all applicable codes” and “the code” as referenced in paragraph B1 of Resolution No. 766 is case specific, based upon the facts presented in each case and cannot be determined generally.
12. It is therefore found that the complainant’s request to inspect “all applicable codes” and “the code” is overly broad and the respondent could not provide the complainant with access to inspect “all applicable codes” or “the code” as referenced in paragraph B1 of Resolution No. 766.
13. It is also found, however, that the respondent official failed to offer to the complainant access to the codes that pertain to the Building Department in his December 8, 1999 response, notwithstanding the fact that the respondent official had already offered to provide access to inspect all the records in his office in response to a prior request of the complainant.
14. It is concluded therefore that the respondent violated the §1-210(a), G.S. [formerly §1-19(a), G.S.] by failing to provide the complainant with access to the codes maintained in the Building Department’s offices in response to the complainant’s December 2, 1999 request.
15. Based upon the facts and circumstances in this case, the Commission 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.
1. The respondent official shall forthwith provide the complainant with access to inspect all the codes, rules, or regulations maintained in the Building Department’s offices.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 24, 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:
Steven Edelman
Frog Pond
Windham Center, CT 06280
Donald W. Schultz, Building Official, Town of Windham
c/o Atty. Richard S. Cody
21 East Main Street
Mystic, CT 06355
__________________________
Melanie R. Balfour
Acting Clerk of
the Commission
FIC1999-591FD/mrb/05/25/00