FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on October 5, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing on this matter, the respondent moved to quash the October 3, 2004 Subpoena Duces Tecum issued by the complainant.  At that time the Hearing Officer granted the motion with respect to the documents subpoenaed but denied the motion with respect to the appearance of Richard Grocki, Sam Totedo and Jess McMinn.  Upon review of the entire record in this case, the respondent’s motion to quash is granted in its entirety.   

           

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)(B), G.S.

 

2.  It is found that at approximately 2:00 p.m. on May 12, 2004, the complainant visited the respondent’s offices and at that time requested that Mr. Richard Grocki, the respondent’s manager, permit the complainant access to inspect: a) the most recent financial statements of the respondent and b) Mr. Grocki’s employment contract with the respondent (hereinafter “requested records”).

 

3.  It is found that Mr. Grocki asked the complainant who he was, requested that the complainant produce identification and questioned why the complainant wanted the records.  It is found that the complainant refused to identify himself and requested the records several more times.  It is found that the respondent denied the requests because the complainant refused to identify himself and to make clear his purpose in requesting the records.

 

4.  It is found that approximately two hours after the May 12, 2004 exchange, the complainant received a letter from Mr. Grocki, which stated, in relevant part:

 

“Re: Request for public documents pertaining to CEC

 

Dear Mr. Kennedy: On Wednesday May 12, 2004 at approximately 3:00 PM, a person came to Troop K in a highly agitated state requesting to meet with me (sic) requesting public documents pertaining to Colchester Emergency Communications, Inc. (CEC).  The man was not specific as to what documents he desired nor was he specific as to what dates and times these documents represented.  It was unclear if he was asking to see actual records or get copies of same.  He refused to discuss the issue in a reasonable manner given the fact that he would not identify himself.  He was extremely angry and left.

 

It has come to my attention that the man described above may be Kevin Kennedy, a local probate judge here in Colchester.  If this person is you, I am notifying you with the assistance of Chief Walter Cox of the Colchester Hayward Fire Department, that any legal public records that pertain to the business of CEC are available for review.  Any specific request will have to be specified in writing allowing for a reasonable length of time to process.  Please name the document and the date it covers.  There will be a processing fee to cover the cost of making any copies requested payable in advance.” 

 

5.  Thereafter, by letter of complaint dated June 11, 2004, and filed on June 14, 2004, the complainant appealed to the Commission alleging that the respondent and Messrs. Grocki, Sam Totedo and Jess. J. McMinn violated the Freedom of Information (“FOI”) Act by denying him access to inspect the requested records.[1]  The complainant requested that the Commission impose civil penalties upon the respondent and Messrs. Grocki, Sam Totedo and Jess. J. McMinn.

 

6.  Pursuant to §1-206(b)(1), G.S., a complaint (notice of appeal) must be filed with the Commission within thirty days of the alleged violation.  With regard to computing the thirty day time period, §§1-21j-15 and 1-21j-22 of the Regulations of Connecticut State Agencies provide that any papers filed with the Commission shall be deemed to have been filed on the date they are recorded as received by the Commission, unless it is a day on which the office of the Commission is closed, in which event the period shall run until the end of the next following business day.  The complaint herein alleges a violation that occurred on May 12, 2004.  The thirtieth day for filing of the complaint was June 11, 2004.  However, the Commission’s office was closed on June 11, 2004.  Therefore, the time period for filing the complaint was tolled until June 14, 2004, the next following business day.  The complaint was recorded as received by the Commission on June 14, 2004, and was therefore timely filed.     

 

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 (1) inspect such records promptly during regular office or business hours…. 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].

 

8.  It is found that the respondent maintains the requested records and such records are public records within the meaning of §1-210(a), G.S.

 

9.  It is found that the May 12, 2004 exchange between the complainant and Mr. Grocki, described in paragraphs 2 and 3, above, was for the most part, witnessed by a reporter, who testified at the hearing in this matter. 

 

10.  It is found that contrary to Mr. Grocki’s recollection of the May 12, 2004 exchange the complainant’s repeated requests to be permitted to inspect the most recent financial statements of the respondent and Mr. Grocki’s employment contract were clear and unambiguous.

 

11.  It is also found that it was improper for Mr. Grocki to require the complainant to identify himself as a condition to permitting the complainant access to inspect the requested records.

 

12.  It is also found that Mr. Grocki’s letter to the complainant, described in paragraph 4, above, suggests a general lack of familiarity with the FOI Act and specifically, the obligation of a public agency to permit prompt access to inspect non-exempt public records.  Specifically, in his letter Mr. Grocki indicates that, “any specific request will have to be specified in writing.” 

 

13.  It is concluded that nothing in §1-210(a), G.S., requires that a request to inspect public records be reduced to writing.

 

14.  In addition, this Commission has stated in prior decisions that a request to inspect public records need not be in writing.  See e.g. contested cases docket #FIC 93-318, Louise K. Czar v. Henry A. Starkel, Chief of Police, Eastern Connecticut State University Police Department, June 22, 1994, docket #FIC 88-399, David M. DeFelice v. Charles Tisdale, Director of Policy and Development of the City of Bridgeport, January 25, 1989.

 

15.  It is also found that in the May 12, 2004 letter, described in paragraph 4, above, Mr. Grocki indicated that copying fees are payable in advance.  However, pursuant to §1-212(c), G.S., a public agency may require copying fees be paid in advance only when such fees are estimated to be ten dollars or more.

 

16.  It is found that on or about May 18, 2004, the complainant again visited the respondent’s offices and at that time requested to inspect, among other records not at issue, the respondent’s financial statements.  It is found that at that time Mr. Grocki provided the complainant with the requested financial statements.  It is also found that on or about October 4, 2004, Mr. Grocki provided the complainant with the respondent’s “Financial Report FY 03/04 for period ending March 31, 2004” as well as an October 21, 1997 letter from Jess McMinn to Mr. Grocki, setting forth the terms of the respondent’s offer of employment to Mr. Grocki for the position of Manager.

 

17.  It is found that the records provided to the complainant on May 18, 2004 and October 4, 2004, as described in paragraph 16, above, comprise the records that are responsive to the complainant’s request at issue herein.

 

18.  It is concluded that the respondent’s provision of access to the requested records was not prompt within the meaning of §1-210(a), G.S., and therefore, the respondent violated such provision.

 

19.  It is further concluded that by imposing improper preconditions to the complainant's right to inspect the requested records, namely, requiring the complainant to identify himself and requiring a written request to inspect public records, the respondent violated §1-210(a), G.S.

 

20.  Section 1-206(b)(2), G.S., provides, in relevant part:

 

upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

21.  It appears that the denial of access, described in paragraphs 18 and 19, above, was without reasonable grounds.

 

22.  It further appears that Mr. Grocki is the official directly responsible for denying the complainant prompt access to inspect the requested records. 

 

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

 

  1.  This Commission shall convene a further hearing pursuant to §1-206(b)(2), G.S., limited to providing Mr. Grocki an opportunity to show cause why a civil penalty of not less than twenty dollars nor more than one thousand dollars ought not to be imposed upon him for his failure to promptly provide the complainant with access to review the requested records.

 

2.   The Commission takes this opportunity to remind the respondent that this Commission in 1997 issued its final decision in contested case # FIC 1996-299, H. Sean Hoskins v. Jess McMinn, President, Colchester Emergency Communications, Inc., and Colchester Emergency Communications, Inc., (“FIC 1996-299”).  In FIC 1996-299, the Commission concluded that “the respondent CEC’s [Colchester Emergency Communications, Inc.] provision of access to the [requested] records…was not prompt within the meaning of §1-19(a), G.S. [now §1-210(a), G.S.], and therefore, the respondents violated §§1-15(a) and 1-19(a), G.S., [now §§1-212(a) and 1-210(a), G.S., respectively]”.  The Commission ordered in FIC 1996-299 that “henceforth, the respondents shall strictly comply with the disclosure provisions of §§1-15(a) and 1-19(a), G.S., [now §§1-212(a) and 1-210(a), G.S., respectively].  

 

3.  Forthwith, the respondent shall take all steps appropriate to ensure that its employees are conversant with the public’s right to access public records and the respondent’s responsibilities under the FOI Act.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 9, 2005.

 

________________________________

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:

 

Kevin Kennedy

163 Broadway

PO Box 1

Colchester, CT 06415

 

Kevin Kennedy

c/o Thomas J. Egan, Esq.

PO Box 181

Brooklyn, CT 06234

 

Colchester Emergency Communications, Inc.

c/o Richard W. Tomc, Esq.

49 Main Street

PO Box 780

Middletown, CT 06457-0780

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-264FD/paj/2/14/2005