FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on November 6, 2003, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.   For purposes of hearing, contested cases docket #s FIC 2003-039, Marshall Klimasewiski v. Chairman, Conservation and Inland Wetlands Commission, Town of Morris and FIC 2003-156, Marshall Klimasewiski and Laurie Klimasewiski v. David Wigg, Chairman, Planning and Zoning Commission, Town of Morris; Christine Bochicchio; Kevin Chilson; Kim Dore; Richard Grinvalsky; Christopher Pawlowski; and Rodger Watts, as members, Planning and Zoning Commission, Town of Morris; and Planning and Zoning Commission, Town of Morris were consolidated with the above-captioned case.   

           

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 several days prior to May 28, 2003 the complainants requested that the respondent chairman provide them with access to the letter that the respondent commission sent to the state Department of Environmental Protection (“DEP”) regarding changes in dock regulations and the DEP’s response to that letter.

 

            3.  It is found that on or about May 28, 2003 complainant Laurie Klimasewiski visited the offices of the respondent commission and at that time asked the Wetlands Enforcement Officer if she could inspect the records described in paragraph 2, above.

 

            4.  It is also found that by letter dated June 16, 2003, directed to the attention of the respondents, complainant Laurie Klimasewiski again requested access to the letter and response, described in paragraphs 2 and 3, above.

 

            5.  Thereafter,  the complainants, by letter dated and filed on June 20, 2003, appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying them access to the requested records.

 

  6.  The complainants requested that the Commission impose the maximum civil penalties against the respondents.   

 

            7.  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 … (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. 

            8.  Section 1-212(a), G.S., provides, in relevant part :

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  The fee for any copy provided in accordance with the Freedom of Information Act: …

(2)  By …[municipal] public agencies, as defined in section 1-200, shall not exceed fifty cents per page…. 

            9.  It is found that at the time of the complainants’ requests described in paragraphs 2, 3 and 4, above, the respondent chairman maintained records that were responsive to such requests.  Specifically, the respondent chairman maintained a packet of records he had prepared and sent to the DEP on or about May 7, 2003. [1]  

            10.  It is found that the records maintained by the respondent chairman are public records within the meaning of §1-210(a), G.S.

            11.  It is found that the respondent chairman sent a letter dated June 23, 2003 to complainant Marshall Klimasewiski indicating that on Friday June 20, 2003 he had sent the complainant “everything we sent to DEP and the Town Attorney.”

            12.  It is found that the respondent chairman informed the complainants in the June 23, 2003 letter that “[T]here has not been any response from a DEP review of the proposed changes.”

            13.  At the hearing in this matter, the complainants testified that they received the June 23, 2003 letter, however they never received the Town Attorney’s response or the DEP’s response. 

            14.  It is found that the respondent chairman enclosed a copy of the Town Attorney’s response in the June 23, 2003 letter to the complainants. 

            15.  It is found that no DEP response existed as of June 23, 2003.

            16.  It is found that the respondent chairman failed to provide the complainants with a copy of the packet of records he sent to the DEP and the Town Attorney’s response promptly.

            17. Consequently, it is concluded that the respondent chairman violated §1-210(a), G.S., when he failed to provide the complainant with a copy of the DEP packet and the Town Attorney’s response promptly.

            18.  The request for civil penalties is denied.

 

            19.  However, it appears from the record in this case that two matters require immediate attention by the respondent chairman and the respondent commission.  First, the testimony of Mr. McNamara concerning disclosure of the respondents’ records in general is troubling.  It is apparent that Mr. McNamara’s position is that all such records and files are not accessible to the public and are the private/confidential records of the respondents, and the Inland Wetlands Agency. This position violates the FOI Act.  All such records and files are “public records” and the presumption is that they are all disclosable to the public unless specifically exempt pursuant to federal law or state statute.

 

            20.  Pursuant to §1-210(a), G.S.:

 

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….

 

            21.  Second, from the testimony in this case it is found that the records of the respondent agency are currently kept in various locations, some in the Wetlands office and others by the Town Clerk.  It is also found that such records are not accessible in a timely manner for possibly several reasons, including the fact that the Wetlands Officer does not have a “permanent” key to those records/files, the Town Clerk does not have access to all of those records/files and may not have the time to attend to a requestor’s request promptly.  At best, such records are apparently only available for public inspection by appointment with the Inland Wetlands Officer.

 

            22.  The respondents must designate one location where the agency’s records will be kept in accordance with §1-210(a), G.S., so that there is no ambiguity as to where one interested in reviewing the agency’s records would go to do so.  Such office must post and maintain regular office hours when the records of the respondents are accessible to the public.

 

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

 

1.  Forthwith, the respondent chairman shall provide the complainant with a copy of the packet sent to the DEP and a copy of the Town Attorney’s response.

 

            2.  Forthwith, the respondents shall designate one location where the agency’s records will be maintained and accessible to the public during regular business hours in keeping with this decision and in accordance with §1-210(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 10, 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:

 

Marshall and Laurie Klimasewiski

c/o Richard S. Keen III, Esq.

406 Farmington Avenue

Farmington, CT  06032

 

Michael Doyle, Chairman,

Conservation and Inland Wetlands

Commission, Town of Morris; and

Conservation and Inland Wetlands

Commission, Town of Morris

c/o Charles E. Roraback, Esq.

Roraback & Roraback

24 Mason Street, PO Box 925

Torrington, CT  06790

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-232/FD/abg/12/12/2003