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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Alan Small, |
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Complainants |
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against |
Docket #FIC 2001-472 | |
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Diane Fox, Town Planner, Planning and Zoning Commission, Town of Greenwich; and Planning and Zoning Commission, Town of Greenwich, |
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Respondent |
April 24, 2002 | |
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The above-captioned matter was heard as a contested case on November 15, 2001 and January 31, 2002, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC 2001-480, Alan Small v. Diane Fox, Town Planner, Planning and Zoning Commission, Town of Greenwich; and Planning and Zoning Commission, Town of Greenwich, at the November 15, 2001 hearing and with Docket #FIC 2001-494, Alan Small v. Diane Fox, Town Planner, Planning and Zoning Commission, Town of Greenwich; and Planning and Zoning Commission, Town of Greenwich at the January 31, 2002 hearing.
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 to the respondent planning and zoning commission (hereinafter “PZC”) dated September 6, 2001, the complainant requested “access to review any and all contracts or purchase orders, specification, or reports related to the services of KVS Systems provided to the Town of Greenwich for use of the [sic] PZC related to or supporting the analysis of floor area ratio during the years 1995 to 2000.”
3. By letter dated September 12, 2001, the respondent PZC’s senior planner acknowledged receipt of the complainant’s request and advised that he would discuss such request with the respondent town planner upon her return to the office later in the week.
4. By letter dated October 9, 2001 to the respondent PZC, the complainant reiterated his September 6, 2001 request and also requested “any memos, notes, or other documents, related to services of KVS Systems and the actual formula developed by KVS used to calculate the Floor Area Ratio information…in Greenwich to support the 1998 [sic] Floor Area Ratio zoning amendments.”
5. Under cover letter dated October 12, 2001, the respondent PZC’s senior planner provided the complainant with copies of the purchase orders for the planning and zoning department’s license to use the KVS system. The senior planner further advised that the respondent town planner had informed him that the planning and zoning department did not have any contract with KVS to provide reports to the respondent PZC and that the formula used to calculate floor area ratios in Greenwich was not developed by KVS.
6. By letter dated October 16, 2001 to the respondent PZC, the complainant reiterated his earlier requests and asked for “any and all contracts or purchase orders, specifications, memos, notes, other miscellaneous documents, reports, and the actual algorithm or program or calculation related to the services of any vendor, town employee, or other person provided to the Town of Greenwich for use of the [sic] PZC related to or supporting the calculation or programming for analysis of floor area ratio during the years 1995 to 2000.”
7. By letter dated October 18, 2001 and filed October 22, 2001, the complainant appealed to the Commission alleging that the respondents partially complied with his September 6, 2001 request and had not responded to his request of October 9, 2001, and had thereby violated the Freedom of Information (hereinafter “FOI”) Act. In addition, the complainant requested that the Commission impose any fines applicable under §1-206(b), G.S.
8. Section 1-210(a), G.S., provides in relevant part that:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…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. 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.
10. It is concluded that to the extent records exist that are responsive to the complainant’s requests, such records are public records within the meaning of §1-210(a), G.S.
11. It is found that in 1996 and 1998, the Town of Greenwich hereinafter (“town”) held public hearings concerning development potential in town and that residents stated during those hearings that they were concerned about the size of buildings being built in town. The respondent PZC then assigned its staff to come up with a floor area ratio (hereinafter “FAR”) for each property in town, which would then be used to determine how much buildable space remained on the property.
12. It is further found that the respondent PZC hired a company known as KVS Information Systems, Inc. (hereinafter “KVS”) to set up a database and create reports that could be generated by the town concerning FARs. The town obtained a license from KVS to utilize its software in connection with this project.
13. At the hearings on this matter, the respondents claimed that they had provided the complainant with all records maintained by them that are responsive to his requests. The respondents further claimed that the “actual formula” that was inputted by KVS to create the reports for the town is not something maintained by them, and that they explained this to the complainant, and provided him with records indicating what the formula was supposed to consist of, and what they believed it did consist of.
14. At the hearings on this matter, the complainant maintained that although the respondents had provided him with purchase orders and some other records responsive to his requests, they must also have some record of the “actual formula” developed and inputted by KVS to calculate FARs; and that even if the respondents do not maintain the actual formula they should be able to get it from KVS. Further, it became clear at the hearings on this matter, that the complainant suspects that the “actual formula” that was inputted by KVS may differ from the description of the formula contained in the records provided to him.
15. It is found that at the conclusion of the November 15, 2001 hearing, the respondents agreed to contact KVS and ask for additional information concerning the actual formula. Thereafter, the respondents contacted KVS, obtained some additional documentation and provided it to the complainant. The complainant was not satisfied with the documentation provided, again claiming that it did not contain all of the information he was seeking.
16. It is found that while it is difficult to imagine that the respondents cannot access the “actual formula” used by KVS, the Commission finds the respondents’ testimony concerning such lack of accessibility, to be credible. It is therefore found that the respondents do not maintain a record containing the “actual formula” utilized by KVS and that the respondents exercised their best efforts with KVS to obtain the information sought by the complainant. Further, the respondents provided the complainant with all records maintained by them that were responsive to the complainant’s requests.
17. It is therefore concluded that the respondents did not violate the provisions of §§1-210(a) or 1-212(a), G.S., in this case.
18. Since the Commission concluded that the respondents did not violate the FOI Act in this case, it would be inappropriate for the Commission to consider the imposition of civil penalties.
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 notes that at the conclusion of the November 15, 2001 hearing on this matter, the respondent town planner indicated that she would meet with the complainant, sit down in front of the access terminal to the KVS system and review the screens and fields containing information concerning FARs with him. As of the date of the January 31, 2002 hearing on this matter, the respondent town planner had not met with the complainant due to some technical difficulties accessing the system. The respondent town planner is encouraged to follow through on her promise as soon as such technical difficulties are resolved.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 24, 2002.
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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:
Diane Fox, Town Planner, Planning
and Zoning Commission, Town of
Greenwich; and Planning and Zoning
Commission, Town of Greenwich
c/o Haden P. Gerrish, Esq.
Greenwich Town Attorney
Town Hall, 101 Field Point Road
Greenwich. CT 06830
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-472/FD/paj/4/29/2002