FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Susan G. Kniep,

 

Complainant

 

 

against

Docket #FIC 2000-445

Mayor, Town of East Hartford,

 

 

Respondents

November 29, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on September 12, 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.  By e-mail message dated July 22, 2000 addressed to the respondent, the complainant made a request for copies of:

 

a.       “records which reflect the amount of time expended by the corporation counsel and her staff which has been dedicated to the Police Chief Shay investigation; and

 

b.      records which illustrate the monies which have been paid or are due to be paid to the lawyer representing you on the Police Chief Shay issue, i.e. bill, etc., contracts, letters, etc., which define the terms under which the attorney has been hired to represent your interests.”

 

3.  By e-mail dated and filed on August 11, 2000, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to respond to and/or comply with her July 22, 2000 request.

 

4.  Section 1-210(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.”  

 

            5.      Section 1-212(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 . . . .”

 

            6.      It is found that the requested records, to the extent that such records exist and are maintained by the town, are public records within the meaning of §1-210(a), G.S.

 

            7.      It is found that two investigations were conducted pertaining to allegations made against Police Chief James Shay: one was conducted by the East Hartford corporation counsel’s office; and the other was conducted by Attorney Michael Foley of the law firm of Pepe and Hazard, LLP.

 

            8.      With respect to the complainant’s request described in paragraph 2a, above, it is found that the corporation counsel’s office does not maintain any records documenting the time spent by each attorney in that office on the Shay investigation or the amount of money spent to conduct said investigation.

 

            9.      With respect to the complainant’s request described in paragraph 2b, above, it is found that the town’s contracted insurance carrier is Reliance Insurance Company, which is a private entity based in Philadelphia, Pennsylvania (hereinafter “Reliance”).

 

            10.  It is found that Reliance, pursuant to its contract with the town, has the “right and duty to defend any suit [against the town] seeking . . . damages because of a wrongful act” and “the right to investigate any wrongful act and settle any claim at  [its] discretion”  without the advice or consent of the town.

 

            11.  It is found that in its efforts to determine whether the allegations against Chief Shay and the town were covered by the insurance policy and whether settlement or defense of the allegations were appropriate, Reliance hired Attorney Foley to conduct an investigation.

 

            12.  It is found, however, that the respondent does not maintain any records pertaining to the investigation conducted by Attorney Foley and more specifically does not maintain any records regarding money paid or owed to Attorney Foley to conduct that investigation.

 

            13.  At the hearing on this matter, the complainant argued that the records pertaining to the investigation conducted by Attorney Foley are public records because the insurance carrier conducted its investigation on behalf of the town with town funds and that the town has an obligation to obtain the investigation records from Reliance and provide them to her.

 

            14.  It is found that pursuant to the town’s contract with Reliance, any expenses incurred by Reliance are to be paid by Reliance and not the town.

 

            15.  It is therefore found that the cost of the investigation conducted by Attorney Foley was paid by Reliance and that no town funds were used to pay for said investigation.

 

            16.  It is further found, based upon the facts and circumstances of this case, that any records that are maintained by Reliance regarding the Shay investigation conducted by Attorney Foley are not town records and therefore are not public records within the meaning of §1-210(a), G.S.  Consequently, the town has no legal obligation to obtain the records from Reliance and to provide them to the complainant.

 

            17.  It is therefore concluded that the respondent did not violate §1-210(a), G.S., by failing to provide the complainant with the requested records.

 

            18.  With respect to the respondent’s failure to respond to the complainant’s request, it is found that the complainant made several requests regarding the Shay matter and that because of the number of requests and the various telephone communications regarding said request, a direct response to the complainant’s July 22, 2000 request was inadvertently not provided. 

 

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 Commission cautions the respondent that, in the future, he should be more diligent in directly responding to requests under the FOI Act.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.

 

 

___________________________________

Ann B. Gimmartino

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:

 

 

Susan G. Kniep

50 Olde Roberts Street

East Hartford, CT  06108

 

J.R. Ramirez, Esq. and Janis M. Small, Esq.

Corporation Counsel’s Office

Town of East Hartford

740 Main Street

East Hartford, CT  06108

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

 

 

 

 

FIC/2000-445FD/abg/12012000