FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on September 13, 2005, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint stamped as received and filed June 21, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by destroying emails.   

 

3.  It is found that pages one through fifteen of the complaint were faxed to the Commission on June 20, 2005 at 8:56 p.m.

 

4.  It is found that the remainder of the complaint, pages sixteen through twenty-nine, were faxed to the Commission on June 20, 2005 at 9:01 p.m.

 

5.  It is found that the complainant deposited a copy of the complaint in the mail at some time on June 20, 2005, which copy was received and filed by the Commission on June 23, 2005.  The Commission has no evidence of when that copy of the complaint was postmarked, but the Commission reasonably infers that the copy was deposited in the mail at approximately the same time as the complaint was faxed to the Commission, making it unlikely that the complaint was postmarked on June 20, 2005.

 

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

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.  [Emphasis added.]

 

7.  Because the date of the denial of any right under the FOI Act is critical to the Commission’s jurisdiction in this case, the somewhat lengthy history of the complainant’s requests and the respondent’s responses is set forth below.

 

8.  It is found that, by letter dated September 6, 2004 to T. V. Rajan, M.D., Ph.D., and copied to the respondent, the complainant requested all documents and correspondence in Dr. Rajan’s possession concerning the complainant, including all documents containing her name, and all documents concerning individuals nominated for appointment or promotion by Dr. Rajan in the Department of Pathology from 2002 to 2004.

 

9.  It is found that, by letter dated November 14, 2004 to the respondent, the complainant acknowledged receipt of certain emails received by her on October 29, 2004 related to her September 6, 2004 request.  In that letter, the complainant protested that the emails from Dr. Rajan were unacceptable because portions of the emails—such as the date, time, sender, or recipient—were not included in the copies delivered to her.  Additionally, the complainant protested that certain correspondence between Dr. Rajan and others had been omitted from the copies of Dr. Rajan’s emails.

 

10.  It is found that the emails provided by Dr. Rajan to the complainant were copies that he personally backed up, in a different format, to his personal computer.

 

11.  It is found that, by email dated April 27, 2005, the complainant acknowledged receipt of certain additional documents provided to her by the respondent, again protested that the emails relating to Dr. Rajan were incomplete, and requested that the respondent advise Dr. Rajan to retrieve the documents from his computer’s hard drive.

 

12.  It is found that, by email dated May 9, 2005 to Dr. Rajan and copied to the respondent, the complainant asked whether the portions of the emails she believed had been deleted could be retrieved.

 

13.  It is found that, by email dated May 9, 2005 to the complainant, the respondent indicated that he would ask the information technology department “for a full accounting of what they are capable of doing vis a vis any backed up emails.”

 

14.  It is found that, by email dated May 9, 2005, the complainant asked the respondent to check with the information technology department.

 

15.  It is found that, by email dated May 20, 2005 to the complainant, the respondent indicated to the complainant that Dr. Rajan had not deleted any emails relating to the complainant in the last 30 days, and that the Information Technology system could not provide any new items related to her request.

 

16.  It is therefore found, construing the May 20, 2005 email in the light most favorable to the complainant, that the latest date on which the respondent denied the complainant’s request for emails concerning Dr. Rajan was May 20, 2005.

 

17.  The Commission takes administrative notice of the fact that the thirtieth day after May 20, 2005 was Sunday, June 19, 2005, a day on which the offices of the Commission were closed.

18.  Section 1-21j-22 of the Regulations of Connecticut State Agencies provides:

All papers and other recorded information governed by sections 1-21j-1 to 1-21j-57 of the Regulations of Connecticut State Agencies, shall be deemed to have been filed on the date they are recorded as having been received by the commission at its principal office.  The commission shall accept papers and other recorded information transmitted by electronic mail or fax to the same extent permitted by the rules of the superior court in civil actions.

19.  Section 1-21j-15 of the Regulations of Connecticut State Agencies provides:

Computation of any period of time referred to in sections 1-21j-1 to 1-21j-57, inclusive, of the Regulations of Connecticut State Agencies begins by first counting the day after the day on which the precipitating event occurs, and ends on the last day of the period so computed.  The last day of the period is to be included unless it is a day on which the principal office of the commission is closed, in which event the period shall run until the end of the next following business day.  If the period of time, including the intervening Saturdays, Sundays and legal holidays, is five (5) days or less, such Saturdays, Sundays and legal holidays shall be excluded from the computation; otherwise such days shall be included in the computation. [Emphasis added.]

20.  It is concluded that the complaint in this matter was required to be filed by the end of the business day on Monday, June 20, 2005.

 

21.  It is concluded that the Commission lacks subject matter jurisdiction over the complaint in this matter, which was not faxed to the Commission until approximately 10:00 p.m. on June 20, 2005, and which was not postmarked until June 21, 2005.

 

 

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

 

            1.  The complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 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:

 

Ulrike Klueh

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06032

 

Office of Health Affairs Policy Planning,

State of Connecticut,

University of Connecticut Health Center

c/o William N. Kleinman, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06030

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-295FD/paj/4/27/2006