FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 4, 2006, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  At its meeting held on February 8, 2006, the Commission remanded the matter to the Hearing Officer for the taking of additional evidence on the issues of possible spoliation and misrepresentation with respect to the records at issue in this case.  The reopened hearing was held on April 5, 2006, at which time the parties appeared and presented evidence and argument.   

           

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 dated October 11, 2005, and filed on October 14, 2005, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him a copy of:

 

a.  a file containing responses to a survey  (hereinafter “responses”)[1]; and

b.  certain Groton Long Point Association (“GLPA”) meeting tapes (hereinafter “tapes”). 

 

3.  It is found that, on or about May 16, 2005, the complainant requested that the respondent install a street light across from the complainant’s home (hereinafter “street light request”).

 

4.  It is found that, by letter dated July 12, 2005, the respondent informed the members of the GLPA that a street light request had been made, and solicited responses from such members by way of an “aye” or “nay” vote in support or against the request.  The July 12, 2005 letter further informed GLPA members that “a simple majority of those responding will prevail and a copy of all responses will be filed in the Association office with this request”.

 

The Request For The Responses

5.  It is found that on or about August 9, 2005 the complainant stopped by the GLPA office and requested copies of the responses.

 

6.  It is found that unbeknown to the complainant when he made his August 9, 2005 request, the responses did not exist, because they were thrown out in the trash soon after the results of the street light poll favoring the installation of a street light was obtained from such responses.

 

7.  Specifically, it is found that the responses were thrown out either a few days just prior to, or after the GLPA’s August 3, 2005 meeting, and before the respondent received the complainant’s August 9, 2005 request.

 

8.  At the hearing in this matter, the respondent testified that the responses were thrown out because they were no longer needed.

 

9.  Because the fact that the responses did not exist was not communicated to the complainant soon after he made his August 9, 2005 request, the complainant continued to believe that the responses existed, that they were being kept on file in keeping with the July 12, 2005 letter, described in paragraph 4, above, and that they were being purposely withheld from him.

 

10.  It is found that the following sequence of events made matters worse: a) on the afternoon of August 9, 2005, the GLPA administrator telephoned the complainant and told him that he needed to call the respondent about the request; b) the complainant called the respondent, reached only an answering machine and left a message for the respondent to return his call; c) the respondent did not return the complainant’s call.

 

11.  Still not being aware that the responses had been thrown out, the complainant, by letter dated September 1, 2005, renewed his request for the responses.

 

12.  It is found that by letter dated September 9, 2005, Marty Rosol, Director of Parks and Roads, informed the complainant that “upon our attorney’s advise we cannot divulge the …[responses to] the light survey by names, as it would be an invasion of their privacy”. 

 

13.  It is found that the complainant then by letter dated September 12, 2005 informed Mr. Rosol that he was surprised to hear the attorney’s advice regarding his request for the responses and reminded Mr. Rosol of the July 12, 2005 letter, described in paragraph 4, above, which indicated that the responses would have been kept on file.

 

14.  It is found that by letter dated September 14, 2005, Mr. Rosol informed the complainant that “your request for a street light on Pole #5 has been denied by the Board of Directors at the monthly meeting …[held] on September 7, 2005.

 

15.  It is found that, by letter dated October 9, 2005, the complainant then requested that the respondent provide him with a complete copy of the street light request file, including any and all inserts as stated in the respondent’s July 12, 2005 letter to GLPA members, and any and all other documents, director’s votes, etc., that refer to the contents of the file and the original request for the street light (hereinafter “file”).

 

16.  The complainant then filed this complaint on October 14, 2005. 

 

The Request For The Tapes

17.  It is found that by letter dated September 1, 2005, the complainant requested a copy of the GLPA August 2005 meeting tape.

 

18.  It is found that by letter dated September 9, 2005, Mr. Rosol informed the complainant that “you may listen to them in the presence of a Director”.

 

19.  It is also found that by letter dated September 12, 2005, the complainant then requested that he be permitted to listen to both the August and September 2005 tapes.

 

20.  It is further found that, by letter dated October 9, 2005, the complainant requested that the respondent provide him with a complete, unaltered copy of all GLPA’s tapes from recent monthly meetings held in 2005 for the months of June, July, August, September and October, following which the complainant filed this complaint on October 14, 2005.

 

21.  Section 1-200(5), G.S., defines “public records or files” to mean:

 

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.

 

22.  Section 1-210(a), G.S., further 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 …or (3) receive a copy of such records in accordance with section 1-212….

 

23.  Section 1-212(a), G.S., provides that: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record”.

     

24.  It is found that the contents of the requested file and the tapes, to the extent they exit, are “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

25.  It is found that the respondent acknowledged receipt of the complainant’s requests for the file and tapes by letter dated October 12, 2005, and, in relevant part, informed the complainant that:

 

Your request will be forwarded to the appropriate Officer or Director for response.  Upon their review of your request, the items will be made available to you.  There will be a cost to you of $1.00 per page for Xerox copies.  We will advise of the total cost of all other materials prior to making those copies.[2]

 

26.  It is found that by letter dated November 15, 2005, the respondent, in relevant part, informed the complainant that the “available materials you have requested are ready to be picked up in our office….”. 

 

 27.  It is found that the complainant visited the GLPA’s office several times between November 15, 2005 and December 16, 2005, however, at such times the office was not open although the complainant’s visits occurred during the GLPA’s office hours.

 

28.  It is found that on December 16, 2005, the complainant visited the GLPA’s office and was at that time provided with a copy of the file and a copy of the GLPA’s meeting minutes for the months of June, July, August, September and October 2005, but not the tapes.

 

29.  The complainant contends that the file he was provided is incomplete.  Specifically, the complainant contends that the responses to the street light request survey are missing.

 

30.  As was already found, in findings 6 and 7, above, the responses to the street light request survey do not exist because they were thrown in the trash soon after such survey was completed. 

 

31.  It is also found that the respondent informed the complainant of the results of the survey, which result favored the complainant’s position, i.e. the installation of a street light.

 

32.  It is further found that the respondent’s July 12, 2005 letter, described in paragraph 4, above, was misleading when it indicated that, “a copy of all responses [to the street light request survey] will be filed in the Association office”.  It is further found that the complainant assumed after he received the respondent’s October 12 and November 15, 2005 letters, described in paragraphs 25 and 26 respectively, above, that the file he was being provided would include the requested responses and tapes.

 

33.  It is concluded that the respondent’s provision of access to the requested file some nine weeks after the receipt of the complainant’s October 11, 2005 request was not prompt within the meaning of §§1-210(a) and 1-212(a), G.S., and therefore, the respondent violated such provisions.

 

34.  However, it is also concluded that the respondent did not violate the FOI Act when he failed to provide the complainant with a copy of the responses, because such responses did not exist on August 9, 2005, the date the complainant first requested such responses.

 

35.  With respect to the specific issues of possible spoliation and misrepresentation it is found that the record does not support a finding that the respondent engaged in any misconduct in this regard in connection with the responses.     

 

36.  With respect to the request for the tapes, it is found that the tapes at issue are for the months of June through October 2005.

 

37.  It is found that the June and July tapes exist, and such tapes were not provided to the complainant.  The respondent gave no reason why such tapes have not been promptly provided to the complainant.

 

38.  It is concluded that the respondent violated the FOI Act by failing to promptly provide the complainant with a copy of the June and July 2005 tapes.

 

39.  It is found that the record is unclear whether tapes exist for the months of August, September and October 2005.  It is found that the respondent had the GLPA’s administrator search for the August and September tapes.  It is found that the administrator did not find the August and September tapes.  The respondent indicated at the hearing in this matter that he could, if necessary, have someone do a more thorough search for the tapes at issue.  The respondent also testified that the GLPA’s meetings are no longer taped because GLPA now records its meetings using a computerized system, and that he is uncertain whether the October meeting was ever taped or if the computerized system was already in place by then.   

 

40.  It is concluded that if the August, September and October tapes exist, the respondent violated the FOI Act by failing to promptly provide the complainant with a copy of such tapes.

 

41.  It is found that the testimony of the respondent at the second hearing in this matter contradicted his testimony given at the first hearing in this matter.  Specifically, the respondent first testified that no tapes at issue in this matter exist, and now the record reflects that tapes do in fact exist for the months of June and July 2005.

 

42.  Although it is found that the respondent either deliberately or unintentionally misled the Commission about the existence of the June and July tapes, the record does not support a finding that the respondent engaged in spoliation of evidence that is relevant to this case.

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

1.  Forthwith, the respondent shall provide the complainant with a copy of the June and July 2005 tapes, without charge, if he has not already done so.

 

2.  Forthwith, the respondent shall conduct a thorough search for the August, September and October 2005 tapes, and if found, provide the complainant with a copy of same, without charge.  If such tapes are not found, the respondent shall forthwith provide to this Commission, and to the complainant, an affidavit from each individual who participated in the creation of such tapes and who had custody or control over such tapes at any time or who in any way came into contact with such tapes.  Such affidavits should attest in detail to what precisely happened to the August, September and October 2005 tapes.

 

3.  Henceforth, the respondent shall strictly comply with the requirements of §§1-210(a) and 1-212(a), G.S.

 

4.  The respondent is advised that pursuant to §1-240(b), G.S., failure to comply with an order of the Commission constitutes a class B misdemeanor.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 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:

 

Stanislaw W. Dziurzynski

Box 3304

15 Crescent Street

Groton Long Point, CT 06340

 

President, Groton Long Point Association

c/o Robert M. DeCrescenzo, Esq.

Updike, Kelly & Spellacy

PO Box 231277

One State Street

Hartford, CT 06123-1277

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-496FD/paj/10/11/2006