FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Howard Lasser, |
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Complainants |
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against |
Docket #FIC 2001-389 | |
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Martin Foncello, First |
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Respondents |
January 9, 2002 | |
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The above-captioned matter was heard as a contested case on October 3, 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 August 13, 2001, and filed with the Commission on August 14, 2001, the complainant alleged that the respondent violated the Freedom of Information Act by denying him copies of certain records described more fully in the findings, below. The complainant asked that the Commission impose civil penalties upon the respondent.
3. It is found that the complainant is a member of the Brookfield Board of Finance [hereinafter “BOF”].
4. It is found that, during a March 15, 2001 meeting of the BOF, while reading from a piece of paper, the respondent stated his belief that salary adjustments might be necessary to address an issue of gender bias, and that, in the opinion of an attorney, differing pay levels were relevant factors in determining such bias. It is also found that such statement was made during the public portion of the meeting, and that the meeting was videotaped and broadcast on a local cable access station. It is further found that, at such meeting, the respondent provided the members of such board, including the complainant, with copies of a town salary comparison record and a multi-town salary comparison record.
5. It is found that, by e-mail dated April 24, 2001, the complainant requested that the respondent provide him with documents “relative to the reorganization and salary adjustments predicated on the gender bias theory”, including a letter from the attorney [hereinafter “gender bias records”]. It is found that, by e-mail dated April 30, 2001, the complainant reiterated his request for “the gender bias records.”
6. It is found that, by e-mail dated June 25, 2001, the complainant requested that the respondent provide him with a copy of the attorney letter described in paragraph 5, above. It is found that, on June 28, 2001, the respondent provided the complainant with an unsigned copy of a May 1, 2001 letter from attorney Michael LaVelle to the respondent that referenced previous discussions about the gender bias issue. It is further found that the respondent provided the complainant with a signed copy of such letter on June 29, 2001.
7. It is found that, by e-mail dated July 7, 2001, the complainant thanked the respondent for the letter described in paragraph 6, above, and requested any other supporting documentation which he had not already received regarding the respondent’s position with respect to the gender bias issue. A copy of such e-mail was sent to Edward McCreery, Brookfield town attorney [hereinafter “the town attorney”]. It is found that, after a series of e-mails between the complainant and the town attorney on July 9, 2001, the complainant withdrew his request for personal notes of the respondent.
8. It is found that, by e-mail dated July 18, 2001, copied to the town attorney, the complainant asked the respondent for the dates of the conversations referenced in the May 1, 2001, letter described in paragraph 6, above.
9. It is found that, by e-mail dated July 23, 2001, the town attorney asked the complainant to put his requests in writing, since it appeared that the complainant received all records except personal notes and oral communications. It is found that, by e-mail dated July 23, 2001, the complainant asked the respondent and the town attorney for all gender bias records and for confirmation of when conversations referenced in the letter described in paragraph 6, above, took place.
10. It is found that, during an August 6, 2001 meeting of the Brookfield Board of Selectmen [hereinafter “BOS”], the complainant again asked for gender bias records. It is further found that the respondent informed the complainant that he already received all such records.
11. It is found that, during a June 4, 2001 meeting of the BOS, the complainant requested copies of records supporting the respondent’s statement that the costs of the town hall roof and the school bleachers were too high [hereinafter “the cost records”]. It is found that, at such meeting, the respondent agreed to make available such records at the next BOS meeting. It is found that the respondent brought the costs records to the next BOS meeting, but that the complainant did not attend such meeting.
12. It is found that, by e-mail dated July 24, 2001, the complainant asked the respondent to bring the cost records to the July 25, 2001 BOS meeting.
13. It is found that the respondent did not bring the cost records to the July 25, 2001 meeting but stated that they would be ready for pick-up on July 27, 2001. It is found that the complainant went to the office of the BOS on July 27, 2001, but that such office was closed.
14. It is found that the respondent mailed the cost records to the complainant at the end of July or beginning of August, but that the complainant only received part of the cost records. It is found that such discrepancy was likely due to a clerical error on the part of the respondent. It is further found that, at the hearing in this matter, the respondent provided the complainant with a complete copy of all cost records.
15. By e-mail dated September 24, 2001, after the filing of the complaint in this matter, the complainant renewed his request for personal notes.
16. It is found that the requested records, to the extent that they exist, are public records within the meaning of §1-210(a), G.S.
17. Section 1-210(a), G.S., provides in relevant part:
[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency… 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.
18. Section 1-212(a), G.S., provides in relevant part:
[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
19. The respondent first contends that the e-mail requests for copies of records were not valid requests under the FOI Act, since such records are unsigned and subject to alteration, and that, therefore, the Commission lacks jurisdiction over the complaint in this matter.
20. It is found, however, that the e-mail requests received by the respondent were written requests within the meaning of §1-212(a), G.S., and it is therefore concluded that the Commission has jurisdiction over this complaint.
21. It is found that the FOI Act does not require a public agency to answer questions or to create records.
22. With respect to the gender bias records, it is found that the only records, which the respondent keeps on file or maintains, within the meaning of §1-210(a), G.S., are:
a) the town salary comparison record and multi-town salary comparison record, which the respondent promptly provided to the complainant as described in paragraph 4, above; and
b) the attorney letter described in paragraph 6, above, which did not exist at the time of the request described in paragraph 5, above, and which was promptly provided to the complainant at the time of the request described in paragraph 6, above.
23. It is also found that the paper described in paragraph 4, above, from which the respondent read, were his personal notes made in preparation for the remarks he made at the March 15, 2001 meeting, and it is further found that the respondent no longer keeps on file or maintains such record. Moreover, it is noted that the complainant withdrew his request for such notes as described in paragraph 7, above, and did not renew his request until after the filing of the complaint in this matter.
24. Based upon the facts and circumstances in this case, it is concluded that the respondent did not violate the FOI Act with respect to the gender bias records, as alleged in the complaint.
25. With respect to the cost records, it is found that the respondent inadvertently did not mail all cost records to the complainant in late July or early August. It is therefore concluded that the provision of all cost records to the complainant at the hearing in this matter was not prompt and that therefore the respondent violated the promptness provisions of §§1-210(a) and 1-212(a), G.S.
26. The Commission declines to impose a civil penalty in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The Commission notes that this complaint is essentially the result of a disagreement between two town officials. The parties are advised that this matter should have been resolved through use of the Commission’s ombudsman program, and without the need to spend scarce state and municipal resources by conducting a time-consuming and costly administrative hearing. The Commission urges the parties to better communicate in the future.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 9, 2002.
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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:
Martin Foncello, First Selectman,
Town of Brookfield
c/o Edward P. McCreery, III, Esq.
Pullman & Comley, LLC
850 Main Street, PO Box 7006
Bridgeport, CT 06601-7006
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-389/FD/paj/1/14/2002