FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on October 10, 2002 at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  It is found that by letter dated March 15, 2002, the complainant requested that the respondent Schilling make available for “inspection and reproduction” the following records:

 

i)                    results of Ecological Assessment and Implications of the Assessment on Evaluation of Remedial Alternatives, whether in interim, final or other form, as referenced in a Letter of Transmittal dated 28 February 2002 from Richard P. Standish to CT DEP, which letter was attached to your February 2002 monthly progress report to Ray Frigon of CT DEP and copied to Mansfield town officials;

ii)                   correspondence, including written or electronic communications, between the university of Connecticut and relevant state agencies, including but not limited to OPM, DEP or DPH, in regard to the study to determine the long-term impacts of the University’s withdrawal of water from the Fenton River as required by conditions set forth in OPM’s approval of the North Campus Master Plan EIE;

iii)                 the most recent available version of the above-referenced Fenton River wellfield study, whether in draft, interim, final or other form as may be included within section 1-19(c)(1) of the Connecticut General Statutes, or available documents containing information that has been made or will become a part of the referenced report …;

iv)                 a copy of the billing records, or documents summarizing same, detailing unpaid balances of approximately $44,000.00, whether or not said balances have been resolved, for water and sewer service provided to a commercial complex near the Storrs campus, as referenced in the 2001 Auditors for Public Accounts audit of UConn for FY99, or other documents, written or otherwise, containing the requested information;

v)                  a list of customers, residences, businesses, offices, or other entities, receiving water and/or sewer services from the University of Connecticut water system, including billing levels for the most recently available year or billing period, and, where applicable, documents authorizing such provision of water and/or sewer services “for compensation…for any property owned or occupied by [the University of Connecticut] or in which it has an interest by reason of a possibility of reverter or of a restriction on alienation in its favor” per section 10a-138 of the Connecticut General Statutes;

vi)                 the most current Fenton aquifer mapping report, whether in draft or other form, or status reports regarding same, including but not limited to the most recently-produced preliminary or final map of the aquifer recharge area or aquifer protection area.  One such document has been circulating among Town of Mansfield representatives and commissions; and

vii)               Supplemental Environmental Project (SEP) agreement arising from 1994/97 RCRA violations or inspections, or documents summarizing the results of said RCRA inspections and the terms of such SEP agreements between Uconn and CT DEP or any other involved state or federal agency, along with information on the SEP’s completed in connection with this projects.

 

In the March 15, 2002 request the complainant also included  “when documents are reasonably available in electronic form, such electronic version shall be produced as provided for under FOIA” (Freedom of Information Act).

 

3.  It is found that by letter dated March 18, 2002 respondent Schilling acknowledged receipt of the March 15, 2002 request and indicated that “your request will involve an extensive search of University’s files (sic).  When the documents have been assembled, we will contact you and provide a room for you to undertake your review.  We will contact you when the documents are available for review.”

 

4.  It is found that approximately one week prior to April 12, 2002, the complainant saw respondent Schilling at an “advisory committee” meeting and at that time enquired about the status of the March 15, 2002 request.  Respondent Schilling informed the complainant that the review was just about complete and that the records were being compiled.  About a week later, after having not heard from respondent Schilling, the complainant contacted respondent Schilling’s office and informed them that he would be stopping by to pick up the records mentioned by respondent Schilling at the “advisory committee” meeting. 

 

5.  It is found that on or about April 17, 2002, the complainant visited respondent Schilling’s office and was provided with approximately 100 pages of records and a letter dated April 12, 2002, from respondent Schilling.  The April 12, 2002 letter indicated that such letter was in response to the March 15, 2002 request and that with respect to items 1, 2, 3, 4, 5 and 7, certain records were being provided, and further that with respect to items 1 and 6, the records on file were “voluminous” and that the complainant could inspect such records by first calling respondent Schilling’s office to make an appointment.  The April 12, 2002 letter further indicated that there was no final report responsive to request item 1. 

 

6.  After reviewing the100 pages of records he was provided, the complainant concluded that such records were “for the most part adequately responsive to” items 1, 4 and 7 of his March 15, 2002 request, but that with respect to items 2, 3, 5 and 6, such records were “incomplete or non-responsive.”

 

7.  The complainant therefore, by letter dated April 22, 2002, followed-up with the respondent and made the following records request:

 

i)                           any and all correspondence and communications, in any form including but not limited to email, between the University of Connecticut and any state agencies, including but not limited to OPM, DEP or DPH, or other governmental entities or commissions, in regard to the study to determine the long-term impacts of the University’s withdrawal of water from the Fenton River;

ii)                         a complete, up to date list of customers, residences, businesses, offices, or other entities, receiving water and/or sewer services from the University of Connecticut water system, and any and all related documents reflecting the university’s compliance with §10a-138 of the Connecticut General Statutes, or for each non-university user, or in the alternative, information relevant to the university’s lack of compliance with the above referenced statute;

iii)                        copies of documents responsive to my original request #6 pertaining to the Fenton River Level A mapping, including electronic versions of volumes I and II of “Level A Mapping for Fenton River Well Field University of Connecticut” and full-sized copies of all oversized maps referred to in your letter of April 12, 2002; and

iv)                       copies of any and all correspondence, transmittal letters, e-mail, memoranda, and communications in any form, between the University of Connecticut and any state agency, the town of Mansfield, political subdivisions, commissions, consultants, and other entities, in connection with Level A Mapping for the Fenton River relating to the scope of work or changes in the scope of work, regulatory or compliance issues, variations from aquifer mapping statues and regulations, schedules of deliverables, agency approvals, and progress reports, including but not limited to those responsive to my original request, and including electronic versions where available.

 

The complainant also indicated in his April 22, 2002 request letter: “Except as noted above, I am for the time being willing to forgo documents responsive to my original request item#1 relating to landfill ecological assessments.  I will contact you when I need these.”

 

 8.  It is found that by letter dated May 1, 2002, respondent Schilling responded to the complainant’s letter of April 22, 2002.

 

9.  Thereafter, by letter dated May 20, 2002 and filed on May 23, 2002, the complainant appealed to the Commission alleging that the respondents violated the FOI Act by denying him access to the records described in his March 15 and April 22, 2002 letters.  The complainant requested that the Commission impose a civil penalty upon the respondents.

 

10.  It is found that on April 17, 2002, at the time of the complainant’s visit to the respondent Schilling’s office, as described in paragraph 5, above, the respondents provided the complainant with records responsive to his March 15, 2002 request items 4 and 7, and the complainant acknowledged at the hearing in this matter that the respondents have complied fully with respect to such items.

 

11.  With respect to items 1, 2, 3, 5 and 6 of the March 15, 2002 request, the complainant contends that such items either have not been provided, or have only been partially complied with by the respondents.  It is found that those are the items that remain at issue (hereinafter “requested records, items 1, 2, 3, 5 and 6") and will therefore be addressed in this complaint.  It is also found that the items requested in the April 22, 2002 request are essentially the same as those requested in items 2, 3, 5 and 6 of the March 15, 2002 request.   Therefore, the findings below concerning the March 15, 2002 request also apply to the April 22, 2002 request.

 

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

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.  Emphasis added. 

 

13.   Section 1-211(a), G.S., further provides, in relevant part:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.

 

14.  It is found that the respondents maintain some of the requested records, and such records are public records within the meaning of §§1-210(a) and 1-211(a), G.S.

 

15.  With respect to requested record items 1 and 6, it is found that at the time of the complainant’s visit to respondent Schilling’s office on April 20, 2002, as described in paragraph 5, above, the respondents provided the complainant with certain records responsive to request item 1, which records the complainant acknowledges he received, however, the complainant contends that a) certain records received are illegible b) there is correspondence and letters of transmittal or cover letters that he has not been provided c) the respondents have not provided the “report”, whether final or interim that he requested and d) the respondents failed to provide him a copy of aquifer maps.

 

16.  Regarding the complainant’s contention that records received are illegible, it is found that if such is the case the complainant is entitled to, and the respondents are obligated to provide access to legible records.

 

17.  Regarding the complainant’s contention that correspondence and letters of transmittals have not been provided to him by the respondents, it is unclear from the record whether records, other than those already provided to the complainant, do in fact exist, but have not been located by the respondents because a further more thorough search needs to be undertaken by the respondents.

 

18.  Regarding the “report”, it is found that as of the date of the hearing in this matter no final “report” exists, however, the respondents maintain an interim report. 

 

19.  Regarding the aquifer maps, it is found that the respondents maintain a hard copy of such maps.  The respondents do not maintain such maps in electronic form.

 

20.  It is found that respondent Schilling, in his April 12, 2002 letter to the complainant described the interim report and maps as “voluminous” and informed the complainant that he could inspect the interim report and maps by telephoning the respondent Schilling’s office for an appointment.  The complainant contends that having to call and make an appointment is an illegal precondition on his right to access public records.  It is found that that the complainant neither called to make an appointment nor visited the respondent’s office during regular business hours to inspect the interim report and maps.

 

21. It is concluded that the respondent’s offer to the complainant that he could inspect the interim report and maps was not unreasonable in light of the fact that the complainant had himself requested that records be made available for “inspection and reproduction” and also because the interim report and maps are sizable, it made good sense to first offer inspection of the documents, prior to photocopying them, particularly since it appears that the respondents did not intend to charge the complainant photocopying fees.

 

22.  Based on the facts and circumstances of this case, it is therefore concluded that the respondents did not deny the complainant access to the interim report and maps but, offered him access to inspect such records and he chose not to follow-up either by calling for an appointment, or if he chose not to make an appointment, by simply showing up during regular business hours to exercise his right to inspect such records.  It is also concluded however, that respondent Schilling’s offer of access to inspect the interim report and maps, approximately one month after the complainant’s March 15, 2002 request, was not prompt within the meaning of §1-210(a), G.S., and therefore respondent Schilling violated such provision.

 

23.  It is further concluded, that respondent Schilling’s general position or policy that an appointment is required before one is permitted access to inspect public records in his office amounts to an illegal precondition on the public’s right to access public records promptly during regular business hours.  Such a policy amounts to a rule or regulation that conflicts with the provisions of §1-210(a), G.S., and diminishes or curtails the rights granted by such provision and is therefore void. 

 

  24.  With respect to requested record items 2 and 3, it is found that as of the date of the hearing in this matter no “Fenton Study”/consultant’s report exists.  It is found that the process is just beginning and consultants were interviewed in July 2002 and one selected the week prior to the hearing in this matter.  It is also found that the respondents provided the complainant with a copy of the proposed scope of work as well as correspondence and e-mails that are responsive to the complainant’s request for correspondence between the “University of Connecticut and relevant state agencies.”

 

25.  With respect to requested record item 5, it is found that the respondent Schilling provided the complainant with all records of right of first refusal he located from the respondent Schilling’s predecessor’s files, and also a “paying” customer list, i.e., all customers billed by the University of Connecticut.  The respondent Schilling conceded that the “Goring” residence was inadvertently omitted from such list.  It is further found that the list provided does not include “non-paying” customers/residences.

 

            26.  The Commission in its discretion declines to impose a civil penalty in this case.

 

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

 

1.  With respect to requested record item 1, as described in paragraph 2i) of the findings, above, the respondent Schilling shall forthwith:

 

a)                            provide the complainant with a legible copy of any records previously provided to the complainant and found to be illegible;

b)                            conduct a more thorough search of his hard copy and computer files for correspondence and letters of transmittal or cover letters not previously provided to the complainant, and if found, provide same to the complainant in an electronic format mutually agreeable to the complainant and the respondent Schilling, if the respondent Schilling can reasonably make such copy or have such copy made and;

c)                            provide the complainant with a copy of the interim report, in an electronic format mutually agreeable to the complainant and the respondent Schilling, if the respondent Schilling can reasonably make such copy or have such copy made.

 

2.  With respect to requested record item 2, as described in paragraph 2ii) of the findings, above, the respondent Schilling shall forthwith, conduct a more thorough search of his hard copy and computer files for correspondence and letters of transmittal or cover letters not previously provided to the complainant, and if found, provide same to the complainant in an electronic format mutually agreeable to the complainant and the respondent Schilling, if the respondent Schilling can reasonably make such copy or have such copy made.

 

3.  With respect to requested record item 5, as described in paragraph 2v) of the findings, above, the respondent Schilling shall forthwith, conduct a more thorough search of his hard copy and computer files for records concerning right of first refusal not previously provided to the complainant, and if found, provide same to the complainant in an electronic format mutually agreeable to the complainant and the respondent Schilling, if the respondent Schilling can reasonably make such copy or have such copy made.

 

4.  With respect to requested record item 6, as described in paragraph 2vi) of the findings, above, the respondent Schilling shall forthwith, provide the complainant with a hard copy of the aquifer maps.

 

5.  Upon completion of the search described in paragraphs 1, 2 and 3 of the order, the respondent Schilling shall forthwith, a) if records are found, provide the complainant with an affidavit attesting to the fact that after completing a thorough search of his files for the records in question, all records responsive to the complainant’s requests have now been provided to the complainant b) if no records are found, provide the complainant with an affidavit attesting to the fact that no records exist in his files, besides those already provided to the complainant.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 14, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

James S. Severson

205 Separatist Road

Storrs, CT  06268

 

Larry G. Schilling, University Architect,

Architectural and Engineering Services Department,

State of Connecticut, University of Connecticut; and

State of Connecticut, University of Connecticut

c/o Paul M. Shapiro, Esq.

Assistant Attorney General

The University of Connecticut

Box U-177, 605 Gilbert Road

Storrs, CT  06269-1177

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-235FD/abg/05/16/2003