FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Eileen Miller,
		Complainants
	against		Docket #FIC 2001-467
Superintendent of Schools, Amity Regional School District No. 5,
		Respondent	August 14, 2002

 

The above-captioned matter was heard as a contested case on December 17, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with contested case docket #FIC 2001-477, Eileen Miller v. Superintendent of Schools, Amity Regional School District No. 5.

           

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 of complaint dated October 5, 2001, and filed with the Commission on October 9, 2001, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her access to “the audit report by Tecum.”

 

3.  It is found that by letter dated September 18, 2001 the complainant requested that the respondent provide her with access to review and copy “the audit by Tecum as referred to in the Register article dated today.”  (In her September 18, 2001 letter, the complainant also requested access to a videotape, which videotape is not at issue in this complaint).

 

4.  It is found that by letter dated September 24, 2001 the complainant renewed her request to the respondent for the audit report.

 

5.  It is found that by letter dated September 28, 2001 the respondent acknowledged receipt of the complainant’s September 24, 2001 request and informed her that the district is not in possession of an audit report by Tecum and that “we are unaware of the existence of a final audit report by Tecum, and should such a report be generated, we anticipate it would be exempt from disclosure” pursuant to §§1-210(b)(4) and 1-210(b)(10), G.S.

 

6.  It is found that sometime between August and September 10, 2001, the respondent district hired the law firm of Sax, Doernberger & Vita (“Sax”) to: a) hire a firm to perform an audit of billings from Attorney Carole Briggs of Briggs & Associates, which firm had represented the respondent district between 1997 and early 2001; and b) represent the respondent district in a lawsuit filed by Attorney Briggs against the school district.

 

7.  It is also found that the Amity Regional School District was well aware at least by September 10, 2001 that Sax would engage the services of a firm to conduct an audit of the billings, as such matter was discussed at an Amity Board of Education meeting on that date.

 

8.  The Commission takes administrative notice of the evidence presented in contested case docket #FIC 2002-075 Carole W. Briggs v. Rolfe W. Wenner, Superintendent of Schools, Amity Regional School District No. 5, with respect to the existence of an audit report prepared by a company called Tecum, Inc. (hereinafter “Tecum audit report”). 

 

9.  In FIC 2002-075, at paragraph 17 of the findings, the Commission found that Attorney Briggs, the complainant in that case, obtained a copy of the Tecum audit report, dated November 21, 2001, sometime in the Spring of 2002.

 

10.  It is found that the Tecum audit report dated November 21, 2001 existed as of the date of the December 17, 2001 hearing in this matter, although it is unclear as to precisely where such report was physically located at that time.  However, in light of the existence of the Tecum audit report, it is found that the respondent’s testimony at the hearing in this matter was at best incomplete, evasive and misleading.

 

11.  Section 1-200(5), G.S., defines “public records” as:

 

any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency…whether such data or information be handwritten, typed tape-recorded, printed, photostated, photographed or recorded by any other method.

 

12.  Section 1-210(a), G.S., further 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.

 

13.  It is found that the Tecum audit report was prepared for the benefit of the respondent district and was paid for by such district.  Consequently, such report is a public record within the meaning of §1-200(5), G.S.

 

14.  It is also found that at the time of the hearing in this matter, the respondent did not maintain physical possession of the Tecum audit report.  However, the respondent cannot avoid disclosure of a public record merely by avoiding physical possession of such record.  See e.g., First Selectman, Town of Columbia v. State of Connecticut, Freedom of Information Commission and John M. Leahy, Docket #CV 00 0501055, Judicial District of New Britain, November 28, 2000 (Owens, J.).

 

15.  Finally, the Commission takes administrative notice of paragraph 41 of the findings in FIC 2002-075, in light of the fact that the complainant is a professional colleague of Attorney Briggs.  Such finding provides in relevant part:

 

41.  With respect to the Tecum audit report and …[Attorney Briggs’] request for such record … the Commission declines to address the issues with respect to whether such report is exempt from disclosure pursuant to either §1-210(b)(4) or 1-210(b)(10), G.S.  Under the facts and circumstances of this case, wherein [Attorney Briggs] … has already obtained a copy of the Tecum audit report, the issues are essentially moot and the Commission will not participate in the personal disputes that are ongoing between the parties when it can offer no further practical relief…Furthermore, the Commission notes that even if the audit report consisted of  “communications privileged by the attorney-client relationship” within the meaning of §1-210(b)(10), G.S., any such privilege was waived in this case at the time such report was provided to …[Attorney Briggs] in its entirety.

 

16.  It is therefore concluded that under the facts and circumstances of this case the Commission need not address whether the requested record is exempt from disclosure pursuant to §§1-210(b)(4) and 1-210(b)(10), G.S.

 

On the basis of the record concerning the above-captioned complaint, no order is recommended.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 14, 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:

 

Eileen Miller

77 Center Road

Vernon, CT 06066

 

Superintendent of Schools, Amity

Regional School District No. 5

c/o Frederick L. Dorsey, Esq.

Siegel, O'Connor, Zangari,

O'Donnell & Beck, PC

150 Trumbull Street

Hartford, CT 06103

 

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-467/FD/paj/8/15/2002