FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by

FINAL DECISION

Steven Edelman,

 

Complainants

 

 

against

 Docket #FIC 2001-295

Donald Shultz, Building Official,

Building Department, Town of Windham,

 

 

Respondent

 May 22, 2002

 

 

 

 

 

The above-captioned matter was heard as a contested case on April 22, 2002, 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 letter dated June 4, 2001 the complainant made a request to the respondent for access to inspect “all affidavits signed by Donald Shultz between January 1, 1995 and January 1, 1997, especially those that refer to Steven Edelman.

 

3.      By letter dated June 6, 2001 the respondent informed the complainant that the requested affidavits were the result of criminal activity and were turned over to a State’s Attorney’s office for its action.

 

4.      By letter dated and filed on June 11, 2001, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by willfully, knowingly and intentionally disposing of public records.  The complainant requested that this Commission order the respondent to retrieve the requested documents and impose a civil penalty against him.

 

5.      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 inspect such records promptly during regular office or business hours . . . .

 

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

 

7.      At the hearing on this matter, the complainant argued that the respondent possesses the requested records because state building inspector Christopher Laux indicated in a hand-written note that the respondent has the requested records.  The complainant also argued that even if it is found that the respondent does not have the requested records, it should also be found that he violated the FOI Act because the respondent had an obligation to keep a copy of the records since they were originally in his possession and belonged to him and because the respondent willfully, knowingly and intentionally disposed of the requested records. 

 

8.      Section 1-240(a), G.S., provides in relevant part that:

 

Any person who willfully, knowingly and with intent to do so, destroys, mutilates or otherwise disposes of any public record without the approval required under section 1-18 or unless pursuant to chapter 47 or 87l, or who alters any public record, shall be guilty of a class A misdemeanor and each such occurrence shall constitute a separate offense.

 

9.      It is found that between January 1, 1995 and January 1, 1997, the respondent was requested by a State’s Attorney’s office on a number of occasions to complete and submit an affidavit with respect to the complainant and certain alleged violations of the Town of Windham’s building code. 

 

10.  It is found that the State’s Attorney’s office in question provided the respondent with a specific affidavit form, which the respondent completed, had notarized and then submitted to the State’s Attorney’s office in question.

 

11.  It is found that the affidavit form was neither generated nor initiated by the respondent, but was merely completed and returned by the respondent to the State’s Attorney’s office in question.

 

12.  It is found that the respondent did not keep a copy of the affidavits and does not maintain any of the requested records.

 

13.  It is therefore concluded that, under the facts and circumstances of this case, the respondent was under no obligation to make and maintain a copy of the affidavits at issue.

 

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

 

15.  It is further concluded that the Commission lacks jurisdiction to prosecute the provisions of §1-240, G.S., since that statute implicates the criminal laws of this state.

 

16.  The complainant’s request that this Commission order the respondent to retrieve the requested documents and impose a civil penalty against the respondent is denied.

 

 

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.

 

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:

 

Steven Edelman

Frog Pond

Windham Center, CT 06280

 

Donald Shultz, Building Official,

Building Department, Town of Windham

c/o Richard S. Cody, Esq.

21 East Main Street

PO Box 425

Mystic, CT 06355

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-295/FD/paj/5/24/2002