FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            

The above-captioned matter was heard as a contested case on July 21, 2005, 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.  By letter of complaint filed March 16, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his February 28, 2005 request for access to public records.  The complainant also requested that the Commission “impose the most severe sanction available against the respondents.”

 

3.  It is found that the complainant, by email dated February 28, 2005 to the respondent Corporation Counsel, made the following request:

 

Pursuant to the Freedom of Information Act and all applicable laws, would you kindly provide me the following information or documents:

 

All billing records for the cases entitled Nicholas O. Russo, Jr. v. City of Hartford et al. or any other defendants.  It is my understanding that firm[s] Shipman & Goodwin and Sabia and Hartley are defending the city in the Russo cases.  I would like a total amount paid to any firms, investigators, experts, and any other fees regarding these cases.  Then as soon as practicable a breakdown of attorneys fees and costs.  Time is of the essence, so please let me know the total amount paid as soon as possible and provide the breakdown later, if necessary.

 

4.  Prior to the hearing, on July 15, 2005, the respondents applied for a more definite and detailed statement of the matters asserted in this complaint, pursuant to §4-177(b)(4), G.S., which provides:

 

(b) The notice [of hearing] shall be in writing and shall include: …  (4) a short and plain statement of the matters asserted. If the agency or party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.

 

5.  The notice of hearing delivered to the respondents by the Commission included a copy of the complainant’s actual complaint to the Commission, which itself contains a short and plain statement of the matters asserted, within the meaning of §4-177(b)(4), G.S.  The hearing officer therefore denied the respondents’ application on July 18, 2005.

 

6.  Also on July 15, 2005, the respondents requested a continuance of the hearing pending a response to their application for a more definite statement.  That request was also denied on July 18, 2005, since their application for a more definite and detailed statement was no longer pending.

 

7.  On July 20, 2005, the day before the hearing, the respondents moved to dismiss the complaint for want of jurisdiction over the subject matter.  In support of their motion, the respondents represented that “all relevant data had been supplied” to the complainant as of April 6, 2005, and that the requested billing records had been offered to the complainant, but rejected by him.

 

8.  It is found that the complainant represented the plaintiff Nicholas Russo in the underlying litigation concerning which he sought the respondents’ billing records.

 

9.  It is found that the respondents provided some billing totals to the complainant in April of 2005, but not the actual billing records.

 

10.  It is found that the respondents obtained copies of the requested bills, amounting to some 2,000 pages, in June of 2005, but did not provide them to the complainant.

 

11.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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….   

 

13.  It is concluded that the requested billing records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

14.  It is found that the complainant’s February 28, 2005 request specifically requested that the records be provided expeditiously.

 

15.  At the hearing, the respondents offered no testimony or evidence to explain the four-month delay between the complainant’s request and the respondent’s collection and copying of the documents, although the respondents argued that they needed to obtain the copies from the law firms representing the City of Hartford, and that they needed time to consider whether it was necessary to redact the bills. 

 

16. Also at the hearing, no evidence was offered that the records had actually been offered to the complainant, or that he had declined them.  Rather, the records were apparently delivered to the Commission ombudsman in an attempt to reach a settlement of the complaint.  Therefore, no findings are made with regard to any attempted delivery, or refused delivery, of the requested records.

 

17.  It is concluded therefore that the respondent violated §1-210(a), G.S., by failing to provide prompt access to, or copies of, the requested billing records. 

 

18.  Following the hearing, the respondents on August 14, 2005 requested that the Commission “take administrative notice of and appropriate reliance upon the final decision of the Commission in Martha Lemmon v. East Norwalk Improvement Association, FIC 2004-286,” asserting that “[r]eliance upon said written final decision as precedent is appropriate in accordance with C.G.S. §4-180a(b).”

 

19.    Section 4-180a(b), G.S., provides:

 

No written order or final decision may be relied on as precedent by an agency until it has been made available for public inspection and copying. On and after October 1, 1989, no written order or final decision, regardless of when rendered, may be relied on as precedent by an agency unless it also has been indexed by name and subject.

 

20.  The respondents contend that Lemmon supports their position that the complainant is obligated to pay for requested public records.  However, the complainant in Lemmon actually received copies of the records she requested, and contested the fee on the basis that she was a member of a taxing district that supported the respondent improvement association in that case.  No such claim is made by the complainant in this case, and the evidence does not support a finding that the complainant received any copies of public records. 

 

21.  It is concluded that Lemmon is inapplicable to the facts of this case.

 

22.  The Commission in its discretion declines to consider the imposition of a civil penalty against the respondents.

 

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

 

            1.  The respondents shall forthwith provide the complainant with access to inspect the requested billing records.  The respondents may impose no charge for the complainant’s inspection of the billing records.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 2006.

 

________________________________

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:

 

Jim Brewer

PO Box 330343

West Hartford, CT 06133-0343

 

Mayor, City of Hartford; and

Corporation Counsel, City of Hartford

c/o John Rose, Jr., Esq.

Corporation Counsel, City of Hartford

550 Main Street

Hartford, CT 06103-2992

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-122FD/paj/2/15/2006