FIC2002-069

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Mark J. Sevetz,
		Complainants
	against		Docket #FIC 2002-069
Chairman, Inland Wetlands Commission, Town of Hartland; Inland Wetlands Enforcement Officer, Town of Hartland; and Inland Wetlands Commission, Town of Hartland,
		Respondents	December 11, 2002

The above-captioned matter was heard as a contested case on April 12, 2002, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. However, the parties reached an agreement, which resolved the complaint in this matter, and a hearing officer’s report dated June 18, 2002 was issued and submitted to the Commission, which report set forth the terms of the agreement reached by the parties and dismissed the complaint. Nonetheless, at the Commission’s meeting of July 24, 2002 the respondents objected to the hearing officer’s report and claimed that the requested records were exempt from disclosure pursuant to §1-210(a)(10), G.S., because they were communications privileged by the attorney client relationship. The respondents requested that the commission reopen the hearing in this matter. The commission, however, ordered the case remanded to the hearing officer for the purpose of issuing a report on the merits of 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. It is found that on February 6, 2002, during the respondent commission’s regular meeting, the complainant made an oral request to inspect the records of the respondent commission that specifically addressed the alleged obstruction in a drainage ditch on the complainant’s property.

3. It is found that the complainant was told that the respondent commission did not have the records he requested and that he should make his request to the town’s attorney.

4. It is found that between February 7 and February 15, 2002, the complainant made four telephone calls to the town’s attorney and left voice mail messages and, as of the date of the hearing in this matter, has not received a response.

5. By letter dated February 15, 2002 and filed on February 19, 2002, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request.

6. 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 . . . .

7. 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 . . . .”

8. At the hearing on this matter, the complainant explained that his request was for any records that describe the drainage obstruction the respondent commission claims existed on his property. The complainant believes such records would include: the time sheets of the enforcement officer that reflect the date and time he was on the complainant’s property and discovered the alleged obstruction; photographs depicting the obstruction and any narratives of the photographs further describing the obstruction; a copy of the cease and desist orders; and any reports of the respondent enforcement officer that were submitted to the respondent commission that describe the nature of the alleged drainage obstructions.

9. It is found that the requested records, to the extent that such records exist, are public records within the meaning of §1-210(a), G.S.

10. It is found that the complainant has been found by the respondent commission to be in violation of certain inland wetlands regulations with respect to a certain drainage ditch on his property.

11. It is found that the Town of Hartland and the complainant are involved in litigation with respect to the alleged violations described in paragraph 10, above, and that the respondent enforcement officer submitted many, if not all, of the records related to alleged obstruction maintained by the town, to the town’s attorney.

12. It is found that the Town of Hartland hired an attorney to represent the town and the respondent commission in the litigation described in paragraph 11, above, which attorney’s office is located in Hartford, Connecticut.

13. Section 1-210(a), G.S., provides in relevant part that:

. . . each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located . . . .

14. It is found that the respondent enforcement officer’s office is the “regular office or place of business” of the respondents, and therefore the respondents’ “public records,” which include those requested by the complainant, must be kept and maintained at that location and must be available there for inspection during regular office or business hours pursuant to §1-210(a), G.S.

15. It is found that while it may have been necessary for the respondents to submit copies of many of the requested records to their attorney, the respondents have the statutory obligation to maintain those records in the office of the respondent enforcement officer.

16. It is therefore concluded that the respondents violated §1-210(a), G.S., by failing to maintain the requested records at its “regular office or place of business,” as required by that provision.

17. It is further found that the respondents are entitled to the requested records while in the possession of the town’s attorney and should have obtained the records from the attorney in order to comply with the complainant’s request.

18. Consequently, it is concluded that the respondents violated §1-210(a) and §1-212(a), G.S., by failing to comply with the complainant’s request.

19. It is found, however, that of the records described in paragraph 8, above, the respondents were only able to confirm the existence of the photographs and time sheets for the enforcement officer from July 1, 2001 through December 31, 2001, which time sheets are maintained by the respondent first selectman.

20. It is also found that the location of the photographs is not clear because they may be in the office of the respondent enforcement officer or may have been submitted to the town’s attorney with respect to the litigation described in paragraph 11, above.

21. Nonetheless, at the hearing on this matter, the respondents agreed to obtain any and all photographs from wherever they may be located and provide the complainant with access to inspect them.

22. With respect to the remaining records, described in paragraph 8, above, specifically any narratives of the photographs, the cease and desist orders, and any reports of the enforcement officer that were submitted to the respondent commission that define the nature of the alleged drainage obstructions, the respondents agreed at the hearing on this matter to conduct a diligent search for the requested records among all records maintained by the Town of Hartland and to obtain any such records that may be maintained by the town’s attorney. The respondents further agreed to schedule a time and a place in the Town of Hartland where the complainant would be permitted to review and make copies of the records after the requested records are located and obtained. Further, if no records exist, the respondents agreed to provide the complainant with an affidavit attesting to which specific record or records do not exist.

23. It is found that neither party was represented by counsel at the hearing on this matter and the respondent first selectman specifically directed his staff, including the respondent chairman, not to involve an attorney in this matter.

24. It is found that the respondents entered into the agreement described in paragraphs 21 and 22, above, without claiming any exemptions to or placing any conditions on the disclosure of the requested records and consequently there is no evidence in the record to prove that any of the requested records are exempt from disclosure pursuant to any exemption found in §1-210(b), G.S.

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

1. The respondents shall forthwith undertake a diligent search for the requested records among all of the Town of Hartland records where such records would reasonably be located and among the records submitted to the town’s attorney. If the requested records are located, the respondents shall forthwith provide a copy of such records to the complainant, free of charge. If any of the requested records are not found, the respondents shall provide the complainant with an affidavit detailing the scope, duration, and results of the search for such records. Further, if any of the requested records do not exist, the respondents shall provide the complainant with an affidavit attesting to that fact.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 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:

Mark J. Sevetz

30 Walnut Hill Road

East Hartland, CT 06027-1321

Chairman, Inland Wetlands

Commission, Town of Hartland;

Inland Wetlands Enforcement

Officer, Town of Hartland; and

Inland Wetlands Commission,

Town of Hartland

c/o Robert J. Hale, Jr., Esq.

692 Old Westfield Road

Granville, MA 01034

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-069/FD/paj/12/17/2002