FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

      The above-captioned matter was heard as a contested case on August 6, 2003, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing this case was consolidated with docket #FIC 2003-054; Edward A. Peruta v. Rock Regan, Chief Information Officer, State of Connecticut, Department of Information Technology; and Nuala Forde, Communications Director, State of Connecticut, Department of Information Technology.

 

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.      By e-mail dated and filed February 21, 2003, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him prompt access to inspect public records, which included the State Police Criminal Database.  The complainant requested the imposition of civil penalties against the respondents.

 

3.      At the hearing on this matter, the complainant clarified his complaint and explained that he was specifically alleging that the respondents violated the FOI Act during his February 20, 2003 visit to the offices of the Department of Information Technology (hereinafter “the department”) by:

 

a.       denying him access to other floors of a public building and limiting his access to the front lobby;

 

b.      denying him access to respondent Regan to make his FOI request;

 

c.       requiring him to make his FOI request to one particular employee;

 

d.      denying him access to public records that are “clearly” disclosable pursuant to the FOI Act; and

 

e.       arguing about the mandates of the FOI Act instead of complying with the request he made on that date.

 

The complainant alleged that all of the above resulted in the respondents denying his “right to prompt access to inspect public records” as required by §§1-210(a) and 1-212(a), G.S.

 

4.      Section 1-210(a), G.S., 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, 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 . . . (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. 

 

5.      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.” 

 

6.      The Commission has previously opined that the word “promptly” in §1-210, G.S., means “quickly and without undue delay, taking into account all of the factors presented by a particular request . . . [including] the volume of statements requested; the amount of personnel time necessary to comply with the request; the time by which the requester needs the information contained in the statements; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without loss of the personnel time involved in complying with the request.”  FOI Commission Advisory Opinion #51, January 11, 1982.  The Commission also recommended in Advisory Opinion #51 that if immediate compliance is not possible, the agency should explain the circumstances to the requester.

 

7.      It is found that on or about January 24, 2003, the complainant met with respondent Forde and requested access to inspect certain records which included a manual on computer disk referred to as the Sierra disk and the segregated criminal history database (hereinafter “the database”).

 

8.      It is found that on or about January 24, 2003, the complainant was provided with access to inspect some of the records he requested because they were readily available, however, the Sierra disk could not be located at that time and the complainant was informed that as soon as it was, access would be provided.  The complainant was informed that the database was still in the process of being created and therefore it was not available.

 

9.      It is found that after January 24, 2003 but prior to February 20, 2003, the complainant submitted a number of additional requests to the respondents to inspect records, which requests culminated in such a confusing series of requests that, at the hearing on this matter, the complainant could not identify exactly what he requested and when.

 

10.  It is found, however, after a careful review of the record, that one of the additional requests was submitted on or about February 5, 2003, to respondent Forde for “all paper or electronically stored notes, memos, letters or documents created or received, since July of 2002, that reference the creation, completion or testing of, a software program to separate criminal history files [on] behalf of the Connecticut Department of Public Safety.”  

 

11.  It is found that on or about February 13, 2003, respondent Forde responded to the complainant’s February 5, 2003 request and informed him that the records he requested on that date had been compiled and would be available for his inspection once they were reviewed by the appropriate employees to determine if any exemption applied to them.

 

12.  It is found that the complainant was not satisfied with respondent Forde’s February 13, 2003 response and he then presented himself, along with an associate carrying a camera, with which she proceeded to tape the encounter, at the offices of the department on February 20, 2003, to submit an FOI request directly to respondent Regan. 

 

13.  It is found that the security guard, stationed in the lobby of the department’s building, precluded the complainant from going beyond the lobby and telephoned respondent Forde, who met the complainant in the lobby. 

 

14.  It is found that during the span of approximately twenty minutes, respondent Forde made numerous attempts to determine if the complainant was submitting an additional FOI request, and to explain that the records he requested on February 5, 2003 were compiled but had not gone through the entire review process.  Respondent Forde explained to the complainant, with a copy of the records responsive to the complainant’s February 5, 2003 request in her hand, that she expected the final review to take place that afternoon and that the records should be available then or the following day. 

 

15.  It is found that throughout respondent Forde’s attempts to assist the complainant, by explaining the status of his request and the department’s policy with respect to complying with the FOI Act, the complainant interrupted, argued with, and lectured respondent Forde. 

 

16.  It is found that during the February 20, 2003 visit, the complainant submitted a request for the Standard Operating Procedure (“SOP”) for the security guards of the department’s building, which record was immediately provided for his inspection. 

 

17.  It is found that during the February 20, 2003 visit, the complainant also requested “documentation” of his calls and e-mails to respondent Forde, as well as copies of nine FOI requests from other members of the public that preceeded his requests.  Respondent Forde had mentioned the other requests during her explanation to the complainant about the delay in complying fully with his requests, and agreed to provide the records to him.

 

18.  It is found that at the end of the verbal exchange of the February 20, 2003 visit, the complainant told respondent Forde that he expected to receive a copy of the records responsive to his February 5, 2003 request “in a timely manner” after the review process was completed and a copy of the SOP described in paragraph 16, above.

 

19.  It is found that the complainant received a copy of the records responsive to his February 5, 2003 request on or about February 27, 2003.

 

20.  With respect to the complainant’s allegations described in paragraph 3a, b, and c, above, the complainant argued at the hearing on this matter that the department’s policy to limit access to a public building to the lobby diminishes and curtails his right to prompt access to inspect public records.  The complainant argued that in order to ensure prompt access during regular business hours, the request must be made to the person most familiar with the requested records so that there is no misdirection or “the run around” and therefore access to other floors and offices of the building must be permitted.  The complainant also argued that the respondent department’s policy of requiring a member of the public to submit FOI requests to one specific agency employee further diminishes and curtails his right to access to inspect public records.  

 

21.  It is found that nothing in the FOI Act requires an agency to permit access to floors or offices in its building and such access is not inherent in the right to prompt access to inspect or to receive copies of public records. 

 

22.  It is also found that nothing in the FOI Act requires an agency to permit access to particular employees for the purpose of submitting a FOI request and such access is not inherent in the right to prompt access to inspect or to receive copies of public records.

 

23.  It is found that nothing in the FOI Act prohibits any agency from delegating the responsibility of responding to and complying with FOI requests to a specific employee or employees and such delegation does not inherently deny prompt access to inspect or to receive copies of public records.  

 

24.  Consequently it is concluded that with respect to the allegations described in paragraphs 3a, b, and c, the complainant failed to allege a violation of the FOI Act.

 

25.  With respect to the allegation described in paragraph 3d, above, at the hearing on this matter, the complainant argued that he should have been allowed to inspect any and all records that were “clearly” not exempt from disclosure and that he should not have had to wait until all of the records passed a review process. 

 

26.  It is that found respondent Forde was entitled to ensure that there were no exemptions applicable to the requested records.

 

27.  It is also found that, under the circumstance of this case, it was reasonable for respondent Forde to insist that all of the records responsive to the complainant’s February 5, 2003 request be disclosed at the same time, given the confusing series of requests the complainant had made.

 

28.  It is also found that respondent Forde had a copy of the requested records in her hand to show the complainant that the records responsive to his request had been compiled and that a good faith effort was being made to comply with his request.

 

29.  It is concluded, therefore, that with respect to the allegation described in paragraph 3d, above, the respondents did not violate the promptness provisions of §§1-210(a) and 1-212(a), G.S., by denying the complainant immediate access on February 20, 2003, to inspect the records responsive to his February 5, 2003 request.

 

30.  With respect to the allegation described in paragraph 3e, above, the complainant argued at the hearing on this matter that the respondents could have complied with his February 20, 2003 request by the close of the normal business day had they chosen not to spend the time resisting and arguing about the mandates of the FOI Act. 

 

31.  It is found, however, in viewing the video recording submitted by the complainant, that any delay that may have occurred in complying with the February 20, 2003 request could also have been caused by the complainant arguing and lecturing about the mandates of the FOI Act.

 

32.  It is also found that, even though some of the records the complainant requested on February 20, 2003 were readily available, respondent Forde explained to the complainant that she had other immediate agency business to attend to and that she would not be able to immediately gather the records and comply with the complainant’s requests and further, the complainant had given no indication that he needed immediate compliance with his request.  See FOI Commission Advisory Opinion #51, January 11, 1982. 

 

33.  It is found therefore that, given the facts and circumstances surrounding the complainant’s February 20, 2003 request, respondent Forde did not deny the complainant prompt access to the records the complainant requested on that date; and therefore, it is concluded that the respondents did not violate the promptness provisions of §§1-210(a) and 1-212(a), G.S, as alleged by the complainant in paragraph 3e, above.

 

34.  It is further concluded that the respondents did not violate the FOI Act on February 20, 2003, as specifically alleged by the complainant in paragraph 3, above, and accordingly, the complainant’s request for civil penalties is denied.

 

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

 

1.      The complaint is hereby dismissed with prejudice.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 8, 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:

 

Edward A. Peruta

38 Parish Road

Rocky Hill, CT  06067

 

Rock Regan, Chief Information Officer,

State of Connecticut, Department of

Information Technology; and Nuala Forde,

Communications Director, State of Connecticut,

Department of Information Technology

c/o Augustus I. Cavallari, Jr., Esq.

General Counsel, State of Connecticut,

Department of Information Technology

101 East River Drive

East Hartford, CT  06108-3274

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-079/FD/abg/10/14/2003