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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Arthur E. Azzarito, |
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Complainant |
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against |
Docket #FIC 2000-351 |
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Deanna Schirmer,
Secretary, Board of |
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Respondents |
October 25, 2000 |
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The above-captioned matter was heard as a contested case September 14, 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.
2.
By letter of complaint dated June 28, 2000 and filed with the
Commission on June 30, 2000 the complainant appealed, alleging that the
respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the minutes and tape of the New
Fairfield Board of Finance (“board”)
special meeting of May 26, 2000. The
complainant requested that the Commission consider whether civil penalties
ought to be imposed against the respondent chairman.
3. It is found that the board
held a special meeting on May 26, 2000 (“meeting”) following which the
respondent secretary filed the minutes of the meeting with the town clerk on
June 9, 2000.
4. It is found that on June 9,
2000 the complainant, by certified mail, sent a letter of request dated June
8, 2000 to the respondent secretary, asking that she provide him with a copy
of the minutes and tape of the meeting
(hereinafter “requested records”). The
complainant copied the request to the respondent chairman, which copy was sent
by regular mail.
5. With respect to the request
directed to the respondent secretary, it is found that she did not receive
such request until June 21, 2000, due to lack of notice from the post office
that certified mail was awaiting her pick up.
6. It is found that upon becoming
aware of the request, the respondent secretary telephoned the complainant on
June 21, 2000 and left a message for him indicating that a copy of the
requested records would be made available to him as quickly as possible.
7. It is found that on Tuesday
June 27, 2000 the respondent secretary had a copy of the requested records
ready and available for pick up at the town clerk’s office.
8. It is found however, that the respondent secretary never followed up with the complainant on June 27, 2000 to let him know that the tape and minutes were ready.
9. It is found that as of June
28/29, 2000, the complainant still had not received any further word about the
status of his request since the June 21, 2000 message left by the respondent
secretary. It is found that the
complainant then filed the complaint in this matter (the letter of complaint
is dated June 28, 2000, and postmarked June 29, 2000).
10. It is found that on or about
June 30, 2000, after the complainant had mailed his complaint to the FOI
Commission, he received a telephone call from the office of the New Fairfield
Board of Selectmen, informing him that the requested records were ready, to
which he responded that they should put such records in the mail as he couldn’t
come in to pick them up that day. It
is further found that the secretary of the Board of Selectmen mailed the
requested records to the complainant on June 30, 2000 and the complainant
received them on July 3, 2000.
11. It
is found that the request for the tape was appropriately directed to the
respondent secretary, who currently maintains and keeps the board of finance
meeting tapes.
12. Under the facts and circumstances of this case, the respondent secretary should have followed-up with the complainant on June 27, 2000 and informed him, or at minimum ensured that he was informed on that day, that the requested records were ready for pick up.
13. Section 1-210(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. 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. Each such 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, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. [Emphasis added.]
14. Section 1-212(a), G.S., further provides, in relevant part: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
15. It is found that the complainant did not receive a copy of the requested tape “promptly” within the meaning of §§1-210(a) and 1-212(a), G.S.
16. It is concluded that although unintentional, the respondent secretary technically violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the requested tape “promptly”.
17. With respect to the minutes, it is found that it is the practice of the respondent secretary after preparing the minutes of the board of finance meetings to file such minutes with the town clerk’s office. It is found that in this case, the minutes were filed and available at the town clerk’s office as of June 9, 2000. It is also found that on or about June 9, 2000 the complainant requested and received from the town clerk a copy of the minutes of the meeting. It is further found that for the complainant to have pursued this complaint against the respondents, alleging a denial of access to a copy of the minutes, which he had long since obtained from the town clerk’s office, borders on bad faith, and harassment of the respondents.
18. With respect to the request copied to the respondent chairman, and described in paragraph 4, above, it is found that no records request was made of the respondent by the complainant. It is found however, that once aware of the complainant’s request, the respondent chairman took all reasonable measures to ensure that the complainant would receive a copy of the requested records promptly. It is therefore, concluded that the respondent chairman did not violate the FOI Act as alleged in the complaint.
19. It is further concluded
that civil penalties against the respondents are not warranted in this case.
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 as against the respondent chairman.
2. The Commission takes this
opportunity to remind the New Fairfield Board of Finance that pursuant to
§1-210(a), G.S., such board “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, the public records
pertaining to such agency shall be kept in the office of the clerk of the
political subdivision.”
3. The Commission also takes this opportunity to remind the complainant that pursuant to §1-206(b)(1), G.S., “[I]f the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.”
Approved by Order of the Freedom of Information Commission at its regular meeting of October 25, 2000.
_________________________
Dolores E. Tarnowski
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:
Arthur E. Azzarito,
14 Old Farm Road
New Fairfield, CT 06812
Deanna Schirmer, Secretary, Board of
Finance, Town of New Fairfield; and
Dan Reese, Chairman, Board of
Finance, Town of New Fairfield
c/o Neil R. Marcus, Esq.
Cohen & Wolf, PC
158 Deer Hill Avenue
Danbury, CT 06810
__________________________
Dolores E. Tarnowski
Clerk of the Commission