FIC2000-651

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
John Carter,
		Complainants
	against		Docket #FIC 2000-651
Purchasing Department, City of Torrington,
		Respondents	October 24, 2001

The above-captioned matter was heard as a contested case on March 7, 2001, August 28, 2001 and September 10, 2001, at which times the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC 2000-615, Holly J. Blinkoff v. Mayor, City of Torrington; Purchasing Agent, City of Torrington; Planning and Zoning Department, City of Torrington; Comptroller, City of Torrington; City Clerk, City of Torrington; Fire Marshal, City of Torrington; and Chief, Police Department, City of Torrington (hereinafter “Docket #FIC 2000-615”).

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 on November 8, 2000, the complainant submitted a request to the respondent, on a form provided by the respondent, for a copy of the bidders lists for: stone products; aggregates, processed gravel, sand, masonry products, asphalt products, road resurfacing, cold patch, chip sealing, attorneys, environmental consultants, and engineering services.

3. By letter dated December 6, 2000 and filed on December 7, 2000, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by failing to comply with his November 8, 2000 request and requiring him to use a form to make such request. The complainant requested that this Commission impose a civil penalty against the respondent.

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.

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. Section 1-206(a), G.S., provides in relevant part that:

Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request . . . Failure to comply with a request to so inspect or copy such public record . . . shall be deemed to be a denial.

7. It is found that the requested records are public records within the meaning of §1-210(a), G.S.

8. It is also found that the respondent maintains records that are responsive to the complainant’s request.

9. It is further found that up to and including the date of the hearing on this matter, the respondent neither responded to the complainant’s request nor provided copies of the requested records to the complainant.

10. It is further found that upon receipt of the complainant’s request, the respondent compiled the requested records but was thereafter advised by either the mayor or corporation counsel of the City of Torrington not to provide them to the complainant.

11. At the hearing on this matter, the respondent made no claim that the requested records are exempt from disclosure under the FOI Act. Rather, the respondent maintained that the complainant submitted his request, in concert with Holly Blinkoff (the complainant in Docket #FIC 2000-615), for the purpose of harassing the respondent. Specifically, the respondent claimed that the complainant submits records requests on Ms. Blinkoff’s behalf, which requests are duplicative of earlier requests made by Ms. Blinkoff, and which requests have already been fulfilled by the respondent. The respondent therefore claims that its failure to respond to the complainant’s November 8, 2001 records request was appropriate and that it should not be required to comply with such request.

12. With respect to the respondent’s claim that the complainant submits his requests in concert with Ms. Blinkoff to harass the respondent, §1-206(b)(2), G.S., provides in relevant part:

If 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. . . .

13. It is found that the complainant has a friendly relationship with Ms. Blinkoff, and that he accompanied her on at least one occasion to public agencies in the City of Torrington to submit records requests.

14. It is also found that the complainant has delivered written records requests to public agencies in the City of Torrington on Ms. Blinkoff’s behalf and that he has also picked up copies of records requested by Ms. Blinkoff from such agencies.

15. It is further found that the complainant’s request in this case is similar, although not identical, to the first of twenty records requested by Ms. Blinkoff in an October 17, 2000 request to the purchasing agent of the City of Torrington (which request is at issue in Docket #FIC 2000-615).

16. It is further found, however, that the complainant’s request in this case was submitted almost one month after Ms. Blinkoff’s request and that there is nothing unusually significant about the similarity of the two requests in view of the fact that both requests are typical of the records requests generally received by the respondent.

17. It is further found that even if the complainant’s and Ms. Blinkoff’s requests were identical, nothing in the FOI Act precludes one person from seeking copies of records that have been requested by another person, even if such persons are friends.

18. It is further found that the respondent failed to prove that the complainant’s November 8, 2000 records request was submitted on Ms. Blinkoff’s behalf or that it was submitted to harass the respondent.

19. It is further found that the Commission decisions cited in the respondents’ memorandum of law submitted after the hearing on this matter, wherein the Commission concluded that the complainants in such matters had filed appeals frivolously, without reasonable grounds and solely for the purpose of harassing the respondents in such matters, are clearly distinguishable from this case.

20. Therefore, it is further found that the respondent failed to prove that the complainant’s appeal to this Commission, either alone or in concert with Ms. Blinkoff, was taken frivolously, without reasonable grounds and solely for the purpose of harassing the respondent, within the meaning of §1-206(b)(2), G.S. Indeed, the Commission would be hard pressed to find, absent substantial evidence of harassment, that an appeal had been filed frivolously, without reasonable grounds and solely for the purpose of harassment, in a case such as this wherein the respondent failed to provide any response whatsoever, and essentially ignored, the complainant’s request.

21. It is further found that even if the respondent believed that the complainant’s request was submitted to harass the respondent, the respondent still had an obligation under §1-206(a), G.S., to respond to the complainant’s request promptly.

22. Based upon all of the findings above, it is therefore concluded that the respondent violated §1-206(a), G.S., by failing to respond to the complainant’s request and further violated the disclosure provisions of §1-210(a) and 1-212(a), G.S., by failing to comply with such request promptly.

23. In his letter of complaint, the complainant also claimed that the respondent violated the FOI Act by requiring him to submit his request on a specific form; however, the complainant did not address this issue at the hearing on this matter and it is therefore not addressed herein.

24. The Commission declines to consider the imposition of civil penalties against the respondent 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 respondent shall forthwith provide the complainant with a copy of requested records, described in paragraph 2 of the findings, above.

2. The Commission notes that the respondent had been in the process of complying with the complainant’s requests when it was instructed not to do so by the mayor and the corporation counsel. This decision by the mayor and the corporation counsel was based on an imprecise, general theory of harassment, that was much broader than the legal standard explicitly set forth in §1-206(b)(2), G.S., and led to the violations found above. Rather than ordering that the complainant’s request be ignored, they should have sought to address their specific concerns about the duplication in the complainant’s requests directly with him. The Commission urges the mayor and corporation counsel to consider all of the provisions and remedies set forth in §1-206(b)(2), G.S., if in the future, they believe action against a complainant is warranted. Ignoring a request for public records is simply not acceptable.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 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:

John Carter

127 Old Farms Road

Torrington, CT 06790

Purchasing Department

City of Torrington

c/o Martin A. Gould, Esq.

Gould, Killian & Wynne

280 Trumbull Street, 25th floor

Hartford, CT 06103-3595

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2000-651/FD/paj/10/25/2001