FIC2001-439

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Robert J. Symmes,
		Complainants
	against		Docket #FIC 2001-439
Emmett McDonough, Democratic Registrar of Voters, City of West Haven,
		Respondent	June 26, 2002

The above-captioned matter was heard as a contested case on October 16, 2001, 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 and filed on September 19, 2001, the complainant appealed to this Commission alleging that the respondent failed to comply with this Commission’s final decision in docket #FIC2001-268, Robert J. Symmes v. Democratic Registrar of Voters, City of West Haven (“Docket #FIC 2001-268”). The complainant requested that a civil penalty be imposed against the respondent.

3. With respect to the complainant’s allegation, the Commission takes administrative notice of the record and decision in Docket #FIC 2001-268, wherein the complainant requested, by letter dated August 1, 2001, “a complete list of all active voters in the City of West Haven, in all ten voting districts, regardless of affiliation which list should include voter name, voter address, voter party affiliation, date of birth and telephone number” (hereinafter “the requested records”).

4. Paragraph 7 of the final decision in Docket #FIC 2001-268 found that the requested records included a “phone list” which lists the voter’s street address, full name, party affiliation, date of birth and listed telephone number and an “official list” which lists the voter’s apartment number and floor (where applicable and available). The Commission ordered the respondent to provide the complainant with copies of the requested records described in paragraph 7 of the final decision in Docket #2001-268, free of charge.

5. It is found that the complainant received a copy of the hearing officer’s report in Docket #FIC 2001-268 and by letter dated August 1, 2001 made a request for the requested records and the respondent’s secretary provided the complainant with a list that did not include Republican or minor party voters, the voter’s date of birth or the voter’s exact address.

6. It is found that pursuant to the order in the Docket #FIC 2001-268, the complainant, by letter dated September 20, 2001, again requested that the respondent comply with such order and provide the requested records.

7. It is found that by letter dated October 1, 2001, the respondent informed the complainant that he had already been provided with a list in accordance with this Commission’s final decision in Docket #FIC 2001-268 and that he would have to pay for any future lists.

8. It is found, however, that as of the date of the hearing in this matter, the respondent had not provided the complainant with the requested records as ordered by the Commission in FIC 2001-268 because he did not provide the complainant with both the “phone list” and the “official list” and therefore failed to comply with the Commission’s order in that decision.

9. Subsequent to the hearing in this matter, the Commission received a letter from the respondent’s counsel, together with a signed acknowledgement by the complainant, stating that on October 17, 2001, the complainant received from the respondent documents in full compliance with his request and as ordered by the Commission in its final decision in Docket #FIC 2001-268.

10. With respect to the complainant’s request for the imposition of a civil penalty §1-206(b)(2), G.S., provides in relevant part that:

. . . . [U]pon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial 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 the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

11. It is found that while the respondent’s secretary was responsible for responding to the complainant’s request, the respondent is the custodian of the request records and is the official directly responsible for ensuring compliance with the Commission’s order in Docket #FIC 2001-268.

12. It is also found that the respondent did not inform his secretary that the Commission’s final decision in FIC 2001-268 specifically ordered him to provide the complainant with two separate lists (a “phone list” and an “official list”) nor had she been given a copy of the final decision to read herself.

13. It is further found that the respondent’s secretary provided the complainant with the same list described in paragraph 5, above, many times before his August 1, 2001 letter but pursuant to his right to receive such lists as a candidate for city council and not pursuant to the Freedom of Information (“FOI”) Act.

14. It is further found that the respondent failed to make clear to his secretary the distinction between his obligation to the complainant pursuant to the complainant’s rights as a candidate and his obligation to comply with the Commission’s order in Docket #FIC 2001-268.

15. Consequently, it is found that the respondent is the official directly responsible for the failure to comply in a timely fashion with the Commission’s order in Docket #FIC 2001-268 and that such failure was without reasonable grounds.

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

1. Within thirty days of the date of the notice of the final decision in this case, the respondent shall remit to this Commission a civil penalty in the amount of one hundred dollars ($100.00).

2. Finally, the Commission admonishes the respondent for his lack of accountability, care, concern and diligence in complying with the FOI Act and the Commission’s order in Docket #FIC 2001-268. His apparent compliance with the Commission’s order in Docket #FIC 2001-268 after numerous inquiries by the complainant, a further complaint to the Commission and not until after the hearing on the subsequent complaint is simply not acceptable conduct by any public official. Such misfeasance seriously calls into question the respondent’s ability to perform the legal responsibilities of his office.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 26, 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:

Robert J. Symmes

285 Second Avenue

West Haven, CT 06516-5127

Emmett McDonough, Democratic Registrar

of Voters, City of West Haven

c/o Henry C. Szadkowski, Esq.

West Haven Corporation Counsel

355 Main Street

West Haven, CT 06516

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-439/FD/paj/6/28/2002