FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                                             

            The above-captioned matter was heard as a contested case on April 17, 2006, at which time the complainant and the respondent appeared 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)(A), G.S.

 

2.  It is found that, by a faxed memorandum dated January 4, 2006, the complainant made a request to the respondent for “copies of any correspondence between the Town of Hebron and the Department of Housing and Urban Development, or other applicable Federal or State agencies, concerning the Town’s efforts to relocate a driveway at the Hebron/Columbia town line on Wellswood Road” (the records being hereinafter referred to as the “requested records” and the underlying transaction being hereinafter referred to as the “transaction”). 

 

3.  By letter dated January 5, 2006, the respondent acknowledged the complainant’s request. By an additional letter dated January 17, 2006, the respondent stated: “that the Town has not corresponded with, nor is in receipt of any correspondence from, HUD or other federal or state agencies.” The respondent also stated: “[o]ther private parties may be in correspondence with HUD”.

 

4.  By letter dated February 7, 2006 and filed with the Freedom of Information Commission (“Commission”) on February 9, 2006, the complainant appealed to the Commission, alleging in detail that the respondent failed to disclose the requested records in violation of the Freedom of Information Act (“FOIA”). In particular, the complainant cited a December 13, 2005 letter from the Department of Housing and Urban Development (“HUD”), stating: “[w]e have reviewed the documents from the Town of Hebron…”, as well as a January 24, 2006 letter from the town counsel of Hebron (the “Town”) stating: “At long last, I believe we are close to consummating [the transaction] ….” The complainant also requested that the Commission assess civil penalties against “appropriate Town of Hebron municipal officials” and declare null and void “the decision of the Town of Hebron to enter into an agreement with [HUD] to allow an easement to be granted to the Kovach and Briggs parcels”.

 

5.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

6.  It is found that in October 2005 or earlier the Board of Selectmen adopted a resolution at a publicly noticed meeting to close off Wellswood Road and negotiate an easement for alternative access for two homeowners.

 

7.  It is also found that, pursuant to the resolution of the Board of Selectmen, the town counsel on October 5, 2005 transmitted by fax a draft easement to Theodore Whitehead of Hebron Properties, LLC. From that point forward until January 17, 2006, representatives of Hebron Properties, LLC conducted all written communications with HUD concerning the transaction.       

 

8.  It is further found that, when the complainant made the records request set forth at paragraph 2, above, the respondent orally asked four persons whether the Town had the requested records: a) his own executive assistant, Donna Smith; b) the town planner, Michael O’Leary; c) the director of public works, Andrew Tierney; and d) the town counsel, Donald Holtman. This search formed the basis for the respondent’s January 17, 2006 letter to the complainant described at paragraph 3, above.

 

9.  It is also found that, by letter dated January 24, 2006, the town counsel informed the respondent that “[a]fter assuring you that I had no communication to or from HUD…on the same day [January 17, 2006]…I received two…[which] are enclosed.” The town counsel went on to suggest forwarding the two records to the complainant “with a suitable explanatory letter.” These two records were a copy of the December 13, 2005 letter from HUD to Theodore Whitehead of Hebron Properties, LLC, which was referenced in the complaint (see paragraph 4, above), and a fax from HUD to the town counsel dated January 17, 2006.

 

10.  It is further found that, by letter dated February 1, 2006, the respondent forwarded three records to the complainant: a) the two records received from the town counsel as set forth in paragraph 9, above; and b) a January 24, 2006 letter, with enclosures, from the town counsel to Theodore Whitehead of Hebron Properties, LLC.

 

11.  At the hearing, the complainant argued that the respondent and the Town used Hebron Properties, LLC as a “middleman” or “intermediary party” in its communications with HUD, and that this method, which was “too clever by half”, violated at least the spirit of the FOIA. It is finally found, however, that there was no evidence that the execution of a publicly announced town policy (see paragraph 6, above) was deliberately structured to circumvent an FOIA request which had not yet been made. Indeed, the respondent’s January 17, 2006 letter (see paragraph 3, above) was somewhat forthcoming in stating that: “[o]ther private parties may be in correspondence with HUD”.

 

12.  It is concluded that the requested records received on January 17, 2006 and afterwards are “public records’ within the meaning of §§1-200(5), 1-210(a), and 1-211(a), G.S.  

 

13.  It is also concluded that the respondent performed a diligent search for the requested records. At the time of the respondent’s January 17, 2006 letter to the complainant, to the best of the respondent’s knowledge and belief, the Town did not keep on file any records within the scope of the request set forth at paragraph 2, above. When the respondent later received records within the scope of the request, he took the supplementary step of forwarding them to the complainant, who received them prior to filing the complaint in this matter.

 

14.  Therefore, it is finally concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., when he was unable to provide copies of the requested records on January 17, 2006. Based on the finding at paragraph 13, above, there are no grounds herein for the assessment of a civil penalty against the respondent or to declare any action of the Town null and void.

 

            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.

 

           

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 14, 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:

 

Ronald Jacques

c/o Eric Knapp, Esq.

148 Eastern Boulevard, Suite 301

Glastonbury, CT 06033-2038

 

Town Manager, Town of Hebron

c/o Donald R. Holtman, Esq.

Katz & Seligman

130 Washington Street

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-047FD/paj/6/21/2006