FIC2001-267

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Shannon Cunningham,
		Complainants
	against		Docket #FIC 2001-267
Commissioner, State of Connecticut, Department of Economic and Community Development; and State of Connecticut, Department of Economic and Community Development
		Respondent	May 22, 2002

The above-captioned matter was scheduled to be heard as a contested case on September 6, 2001, at which time the complainant and the respondents appeared, and jointly requested that the matter be continued for six weeks. The matter was then rescheduled and heard as a contested case on January 10, 2002, 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 and filed with the Commission on June 1, 2001, the complainant appealed, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying her access to complete records concerning Project #1993-028-013-057-000098 Breed’s Tavern Cooperative, Colchester, Project Developer, Vision Housing, (hereinafter “project”).

3. It is found that by letter dated April 24, 2001, the complainant requested that the respondent department provide her with access to, and if needed, copies of all documents of funding sources, and contract restrictions/covenants concerning the project including the following:

I. Home Investment Partnership Administration Fund Program

i) amount of funding provided and approved

ii) financing for land acquisition and development, restrictions and covenants

iii) dates monies posted to project;

II. DECD- Limited Equity Cooperative Housing Program

i) amount of funding provided and approved

ii) all restrictions and covenants

iii) dates monies posted to project;

III. Financial statements- Budget/ Planning for development;

IV. Total project expenditures and if in compliance with Assistance Agreements;

V. Record of any other funding awarded, but not yet disbursed to co-op;

VI. Any other funding source not listed- amount and restrictions;

VII. Town grants of any kind that matched a percentage of funding;

VIII. Tax credits given;

IX. Copy of project management plans submitted and approved by the respondent department’s deputy commissioner for the last five years, and also copy of the proposed draft for 2001, if possible;

X. Audit report of application and files of members-noted discrepancies if any and signature copy of the respondent department’s member who completed audit;

XI. Certified copy of original Declaration, By-Laws, Ground Lease, House Rules and attachments submitted, reviewed and signed by the Deputy Commissioner of the respondent department;

XII. Listing of co-op members and respective dwelling unit of each member (likely provided to the respondent department in 1995 or 1996), and “Punch List” items recorded for each unit during last inspection;

XIII. Proposed modified Declaration and other documents submitted by Attorney Mark Balaban on behalf of Breed’s Tavern Cooperative;

XIV. Copy of housing manual –management for state financed housing;

XV. Copy of all of the respondent department’s regulations, tables, matrix guides for both funding sources.

4. It is found that by letter dated May 15, 2001, the complainant also requested that the respondent department provide her with access to the following records:

i) all letters of correspondence to Vision Housing Inc. and Breed’s Tavern Cooperative regarding notice of default for the past to the present day;

ii) department regulations for properties in default, specifically limited equity cooperatives;

iii) all minutes of meetings involving Vision Housing and Breed’s Tavern Cooperative and memos of division head decisions that would have to do with the same;

iv) project #1994-028-057-00-00021A1 original contracts modified 7/15/94 and 10/5/ (sic) on memo dated 5/8/01-indicate invoice # and where funds were allocated.

5. 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. [Emphasis added.]

6. It is found that the respondents maintain or keep on file some of the requested records, and such records are public records within the meaning of §1-210(a), G.S.

7. It is found that upon receipt of the complainant’s request, described in paragraph 3, above, the respondents contacted their Willimantic office, which office maintained some of the requested records. The project manager in such office compiled the records he maintained, and which he believed were responsive to the complainant’s request, and forwarded them to the respondent’s Hartford office.

8. It is found that on May 15, 2001, the complainant visited the respondents’ Hartford office and at that time inspected some of the requested records and flagged certain pages, for which she requested copies.

9. It is found that on or about May 25, 2001, the complainant telephoned the respondents and informed them that certain attachments were missing from the records she had received. Specifically, certain Assistance Agreements were missing exhibits and/ or other attachments. The respondents looked into in this, and determined that the attachments were missing. The attachments were located by the respondents and the complainant picked up copies on or about June 8, 2001.

10. It is found that the respondents provided the complainant with the entire project file on June 28, 2001, for her review.

11. It is found that the respondents provided the complainant with four hundred and twenty nine pages of records on or about May 25, 2001 and waived copying fees for such records, one hundred and sixteen pages of certified copies of records on or about June 7, 2001, again waiving copy fees. The respondents also provided the complainant with: two hundred and eighty three pages of records on or about June 28, 2001 for which the complainant paid $70.75 copying fees, four hundred and fifty four pages of records on or about July 9, 2001 for which the complainant paid $113.50 copying fees, one hundred and twenty five pages of records on or about July 20, 2001 for which the complainant paid $31.25 copying fees (the records produced on July 20, 2001 included records created after the complainants’ requests), one hundred and fourteen pages of records on or about July 27, 2001 for which the complainant paid $28.50, (however, the respondents returned the complainant’s check for $28.50 following a disagreement between the complainant and the respondents concerning whether the correct pages flagged by her had in fact been copied and also following the complainant informing them that certain pages she received had not been properly copied) and six pages of records on or about November 19, 2001 for which the respondents waived copy fees. The total number of records provided by the respondents to the complainant concerning the project totals one thousand five hundred and twenty seven pages.

12. The complainant contends that she has not received all records requested, including the following: all financial reports concerning Breed’s Tavern expenditures, audits, Vision Housing expense vouchers and check numbers, records of cost control and tracking of funds, requisitions for payments, certificate of purpose forms, state Comptroller, Central Accounts Payable Division vouchers, project field reports, site visit reports, building construction specialist reports, Management Plans and yearly reviews, and minutes of a February 3, 1998 meeting with Vision Housing and the respondents’ staff.

13. It is found that the respondents do not maintain many of the records the complainant requested. The complainant’s position is that the respondents must have all of the records she requested, because they should have them. However, the respondents are not required under the provisions of the FOI Act to create records. Their responsibility under the Act is to provide access to all non-exempt records that they do have, promptly.

14. It is found that the respondents have made available to the complainant the records that they do have. It is further found that some of the records made available to the complainant were not provided promptly. Specifically, the attachments that were initially not made available, and only made available when the complainant followed up to inform the respondents that they were missing; project records disclosed to the complainant on June 28, 2001 when the entire project file was made available to the complainant; and the budget/management plan which was not provided to the complainant until November 19, 2001. The respondents indicated at the hearing in this matter that initially the budget/management plan was not provided to the complainant because they had determined that such document was a “draft”, however, the respondents failed to provide any evidence at the hearing, and therefore failed to prove, a claim that the budget/management plan was exempt pursuant to federal law or state statute.

15. The complainant also contends that she received two Assistance Agreements that are different. If there are discrepancies concerning the contents of the Assistance Agreements provided to the complainant by the respondents, such discrepancies are not appropriate for this forum as those are not issues over which this Commission has jurisdiction. The FOI Act requires that the respondents provide to the complainant the Assistance Agreements they have. This they have done.

16. It is concluded that the respondents have provided the complainant with access to the records that they have concerning the project, and the respondents provided some of those records in a timely manner, given the scope and volume of the complainant’s records request.

17. However, it is also concluded that the records described in paragraph 14, above, specifically the attachments, the project records made available to the complainant on June 28, 2001 when the entire file was disclosed to her, and the budget/management plan provided on November 19, 2001, were not provided “promptly” within the meaning of §1-210(a), G.S., and therefore, the respondents violated such provision.

18. The complainant is a member of the Breed’s Tavern Cooperative in Colchester and is well-intentioned and seeking information about the project, the project developer, and how funds concerning the project were administered. The complainant described the seriousness of her personal situation which involves the possibility of her losing her home. The complainant believes the cooperative has been mismanaged and she is trying to get information to shed light on the entire situation. For this the complainant should be applauded. However, the complainant’s conduct at the hearing in this matter, can only be described as out of control. The complainant for most of the lengthy hearing in this matter would not heed the suggestions, requests and instructions of the hearing officer with respect to the orderly presentation of evidence, and would not respond to the hearing officer’s specific inquiries when the hearing officer attempted to move the proceedings along. After several battles with the complainant, the hearing officer was finally able to solicit from the complainant some evidence which is relevant to this Commission’s proceedings and jurisdiction. While this Commission is not unsympathetic to the complainant’s situation, such conduct is unproductive and impedes this Commission’s process.

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

1. Henceforth, the respondent shall comply with the promptness requirement of §1-210(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 22, 2002.

_______________________________________

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:

Shannon Cunningham

7-3 Tavern Lane

Colchester, CT 06415

Commissioner, State of Connecticut,

Department of Economic and Community

Development; and State of Connecticut,

Department of Economic and Community

Development

c/o Paul K. Pernerewski, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-267/FD/paj/5/23/2002