FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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Jeffrey T. Kriete, |
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Complainant
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against
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Docket #FIC1999-447
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Water Pollution Control Commission,
Town of Westbrook, |
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Respondents
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June 14, 2000
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The above-captioned matter was
heard as a contested case on April 27, 2000, at which time the complainant and
the respondent appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint. The
case caption has been amended to correctly reflect the name of the respondent.
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 and filed with the Commission on September 23, 1999,
the complainant alleged that the respondent violated the Freedom of
Information [hereinafter “FOI”] Act by failing to keep on file and
maintain the test results described in paragraph 5, below, prior to the
respondent’s public information meeting of August 26, 1999 [hereinafter “the
meeting”].
3.
Section 1-200(5), G.S. [formerly §1-18a(5),
G.S.], defines “public records” to include:
“…any recorded data or information relating to
the conduct of the public's business prepared, owned, used, received or
retained by a public agency, whether such data or information be
handwritten, typed, tape-recorded, printed, photostated, photographed or
recorded by any other method.”
4.
Section 1-210(a) [formerly §1-19(a),
G.S.], provides in relevant part:
“…[e]ach [public] agency shall keep and
maintain all public records in its custody at its regular office or place
of business in an accessible place and, if there is no such office or
place of business…”
5.
It is found that, pursuant to an order of the Department of
Environmental Protection, the town of Westbrook entered into a contract with
Earth Tech, Inc. [hereinafter “the engineer”] on October 27, 1997, for the
performance of professional engineering services, consisting of the
preparation of a wastewater management study which would refine Westbrook
wastewater disposal needs and evaluate and present recommendations for
appropriate disposal solutions [hereinafter “the contract”]. It is further found that the contract was to be performed in
six phases over many months, that, since October 27, 1997, the contract’s
life has been extended, and that the contract was being performed at the time
of the hearing in this matter. It
is also found that the respondent is the Westbrook agency assigned to monitor
the contract.
6. It is found that, at the time of the meeting, the
engineer was at the end of phase two and the beginning of phase three of the
contract. It is further
found that, under the terms of the contract, during phase three of the
project, the engineer was scheduled to provide the respondent with a report
summarizing the test results, but not the actual test results.
7.
It is found that, at the time of the meeting, and at all times prior to
such meeting, the test results were maintained by the engineer in New
Hampshire.
8. It is found that, at the time of the meeting, the test
results were not prepared, owned, used, received or retained by the respondent
within the meaning of §1-200,
G.S. [formerly §1-18a,
G.S.], and, therefore, it is concluded that the test results were not public
records at such time.
9.
It is also concluded that the respondent did not violate §1-210(a),
G.S. [formerly §1-19(a),
G.S.], by failing to keep on file or maintain the test results prior to the
meeting, as alleged in the complaint.
10. Nevertheless, it is
found that, on or about September 10, 1999, the first selectman of Westbrook
obtained the test results from the engineer and forwarded such results to the
complainant.
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.
2. The holding in this
case is limited to its facts and under no circumstances should this decision
be interpreted as a ruling that only documents in the physical custody of
public agencies are public records.
Approved by Order of the Freedom of Information
Commission at its regular meeting of
June 14, 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:
Jeffrey T. Kriete
Westbrook, CT 06498
Water Pollution Control Commission, Town of Westbrook
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-447FD/mrb/06/14/00