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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Bradshaw Smith, |
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Complainant |
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against |
Docket #FIC 2000-494 |
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Bonnie L. Therrien,
Town Manager, |
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Respondents |
November 8, 2000 |
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The above-captioned matter was heard as a contested case on October 6, 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.
2. It is found that by letter
dated August 21, 2000, the complainant requested that the respondent provide
him with a copy of the successful candidate’s application and/or resume for
the position of Reference Librarian at the Berlin-Peck Memorial Library
(hereinafter “requested record”).
3. Having failed to receive the
requested record, the complainant, by letter dated and filed on September 5,
2000, appealed to the commission alleging that the respondent violated the
Freedom of Information (“FOI”) Act by denying him a copy of the requested
record. The complainant requested
that the commission impose civil penalties against the respondent and that she
undergo FOI training.
4. 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.
5. 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.”
6. It is found that the respondent provided the complainant with a copy of the requested record by letter dated September 12, 2000.
7. Consequently, the only issue before the Commission is whether the respondent’s provision of access, described in paragraph 6, above, was prompt within the meaning of §§1-210(a) and 1-212(a), G.S.
8. The respondent indicated at the hearing in this matter that
the position for Reference Librarian
was considered filled only after the successful completion of a medical
examination on September 2, 2000, by the candidate, and therefore, since the
hiring process had not been completed as of August 22nd /23rd,
2000, when she received the complainant’s records request, she could not
have satisfied such request. She
indicated that on hindsight, she should have contacted the complainant to
inform him about the hiring process. She
further indicated that once the medical examination was successfully
completed, and the position was therefore filled, she requested the assistance
of counsel and the FOI Commission to determine if all application and resume
information was disclosable to the complainant.
She then mailed the requested records to the complainant on September
12, 2000 and he received them on or about September 13, 2000.
9. It is concluded that under the specific facts and circumstances of this case, where the respondent did not have a successful candidate in place until September 2, 2000, and therefore, could not have fulfilled the complainant’s request when she received such request on August 22nd/ 23rd, 2000, her only obligation at that time was to respond to the complainant and inform him accordingly.
10. The complainant acknowledged at the hearing that had he received some form of communication apprising him of the situation he would not have proceeded to file this complaint, and that he has no problem with the respondent taking time to confer with counsel, to ensure that any exempt information is redacted before disclosure.
11. It is concluded that under the facts and circumstances of this case the respondent’s provision of access to the requested record, once the hiring process was complete, did not violate the promptness provisions set forth in §§1-210(a) and 1-212(a), G.S. However, the Commission agrees with both parties that a response to the complainant would have been appropriate under the circumstances.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The respondent is reminded that at a minimum a response to a requester of records should be provided within four business days of receiving a request, since failing to do so is deemed a denial, and triggers a complainant’s right to file a complaint against her agency.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 8, 2000.
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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:
Bradshaw Smith
23 Ludlow Road
Windsor, CT 06095
Bonnie L. Therrien
Town Manager
Town of Berlin
240 Kensington Road
Berlin, CT 06037
___________________________________
Dolores E. Tarnowski
Clerk of the Commission