FIC2001-196

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Moshe Gai,
		Complainants
	against		Docket #FIC 2001-196
Department of Physics, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut,
		Respondents	October 10, 2001

The above-captioned matter was heard as a contested case on June 19, 2001, 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 April 11, 2001 and filed with the Commission on April 12, 2001, the complainant appealed, alleging that Dr. William Stwalley, head of the respondent department, violated the Freedom of Information Act by denying him access to all communications between the University of Connecticut (“Uconn”) and the Thomas Jefferson National Accelerator Facility a.k.a. the Jefferson Lab, Newport News, VA (“JLab”).

3. It is found that by e-mail dated February 13, 2001, the complainant, a professor within the respondent department, requested that Dr. Harris Marcus, a member of the respondent department and the complainant’s “administrative liaison”, provide him with a certain communication received by Dr. Stwalley from JLab, which communication he had previously requested from Dr. Stwalley during an October 2000 meeting with the Physics Advisory Committee (hereinafter “JLab communication”). It is also found that in the February 13, 2001 e-mail the complainant renewed a prior records request for “all communications between JLab and Uconn”.

4. It is found that subsequent to the February 13, 2001 request and prior to March 21, 2001 the complainant, having not received the JLab communication, spoke to Dr. Marcus and again requested that record.

5. It is found that on or about March 21, 2001, Dr. Marcus provided the complainant with a copy of a November 7, 2000 letter and a copy of the JLab communication, a July 2000 e-mail.

6. The complainant contends that the respondents failed to promptly and fully comply with his request in the past for all communications between Uconn and JLab, and that only at his prodding and insistence do other records surface.

7. Section 1-200(5), G.S., defines “public records” as: “[a]ny 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.”

8. Section 1-210(a), G.S., further provides:

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.

9. It is found that at the time of the complainant’s February 13, 2001 request the following records responsive to such request existed in the respondents’ files: the JLab communication, a November 7, 2000 letter (described in paragraph 5, above), and December 8 and December 18, 2000 letters, (described in paragraph 11, below).

10. It is concluded that the records described in paragraph 9, above, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.

11. It is found that the respondents provided the complainant with a copy of the December letters, described in paragraph 9, above, on or about April 13, 2001.

12. The respondents contend that at the time of the complainant’s request some of the requested records, specifically, the November 7 and December 8, 2000 letters, could not be located and were not in the “JLab file”, and in addition, the fact that the complainant’s records request was directed to Dr. Marcus, the liaison, may have led to a delay in the communicating and handling of such request.

13. It is found that Dr. Stwalley located and turned over copies of the November 7 and December 8, 2000 letters to Dr. Marcus on or about March 13, 2001, who in turn provided them to the complainant on or about March 21, 2001. The copies were located by Dr. Stwalley in the “Dean’s file” between early March 2001 and April 12, 2001.

14. It is found that Dr. Stwalley does not believe that he saw the complainant’s February 13, 2001 request and believes that the first request he received was on or about April 11, 2001.

15. It is found that pursuant to a September 2000 Memorandum of Understanding (“MOU”) between the respondent university and the American Association of University Professors, the parties to the MOU agreed that Dr. Marcus would function as administrative liaison for the complainant, and that the complainant would address all concerns about his professional activity to Dr. Marcus exclusively for the entirety of the next academic year.

16. It is found therefore that it was not unusual or unreasonable, based upon the MOU, that the complainant directed his February 13, 2001 request to Dr. Marcus and not directly to Dr. Stwalley.

17. After a thorough review of the record, it is found that the provision of access to the records as described in paragraphs 5 and 11, above, approximately five and eight weeks, respectively, following Dr. Marcus’ receipt of the complainant’s February 13, 2001 request, was not prompt within the meaning of §1-210(a), G.S., and therefore the respondents violated the promptness provision of the FOI Act.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. Forthwith, Dr. Stwalley shall provide the complainant with an affidavit attesting to the fact that all communications between Uconn and JLab for the period July 2000 through April 2001 have been provided to the complainant.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 10, 2001.

_______________________________________

Petrea A. Jones

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:

Moshe Gai

c/o Thomas W. Bucci, Esq.

Willinger, Willinger & Bucci, PC

855 Main Street

Bridgeport, CT 06604

Department of Physics, State of Connecticut,

University of Connecticut; and State of

Connecticut, University of Connecticut

c/o Paul M. Shapiro, Esq.

Assistant Attorney General

The University of Connecticut

Box U-177, 605 Gilbert Road

Storrs, CT 06269-1177

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-196/FD/paj/10/11/2001