FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on January 22, 2007, 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 October 5, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying promptly with his request for public records. 

 

            3.  It is found that the complainant learned from a West Hartford newspaper account that Elite Sports Medicine, a program run in conjunction with Connecticut Children’s Medical Center, and under the direction of a Dr. Carl Nissen, had contracted with “four local high schools” to care for student athletes.   There are four high schools, two public and two private, in West Hartford, and the complainant therefore inferred that Elite Sports Medicine had contracted with the two public high schools.

 

4.  It is found that the complainant made a written request dated August 28, 2006 to the respondents for:

 

The entire file including but not limited to contract(s), amendment(s) to contract(s), fee for service schedules, correspondence among and/or between the Superintendent of Schools and/or the Board of Education of the West Hartford Public Schools and Elite Sports Medicine and/or Connecticut Children’s Medical Center and/or Carl Nissen, M.D. pertaining to the medical treatment, examination, diagnosis, rehabilitation, counseling and care of injuries and the physical conditioning, instruction and education of injury prevention programs pertaining to student athletes attending Conard High School and/or Hall High School located in the Town of West Hartford.

 

5.  It is found that the complainant’s request was received by the West Hartford Town Hall mailroom on August 29, 2006, but that the request was apparently not forwarded to the respondents during the relocation of the respondent Board of Education from 28 South Main Street to 50 South Main Street during the same week that the request was received.  The respondents did not become aware of the complainant’s request until November 21, 2006, when they were informed of the complaint by the Commission.

 

6.  It is found that the respondent Board of Education searched for any documents within the scope of the request, but found none.

 

7.  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.

 

8.  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.

 

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

10.  It is found that the records, to the extent they exist, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

            11.  The complainant contends that the respondents did not reply promptly to his request.  He requested at the hearing that the Commission order the respondents to provide the requested records if they exist, or provide an affidavit attesting to the measures taken to search for the records, and attesting to whether the records may exist in another municipal agency or department.

 

12.  The respondents do not contest that their response was not prompt within the meaning of §§1-210(a) and 1-212(a), G.S., although they reasonably ascribe their delay in responding to difficulties associated with the move of the Board of Education offices.

 

13.  Although the respondents conducted a search for the requested records, it is found that respondents offered no evidence to prove the method or thoroughness of their search.  Moreover, the respondents made no claim that there was no contract or correspondence between them and Elite Sports Medicine and/or Connecticut Children’s Medical Center and/or Dr. Carl Nissen, and therefore leave open the complainant’s reasonable inference that some such records exist.

 

14.  It is concluded that the respondents violated §1-210(a), G.S., by failing to conduct a diligent search for the requested records.

 

 

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 conduct a diligent search for the requested records, and provide any located records to the complainant.  If the respondents do not locate any records responsive to the complainant’s request, they shall cause an affidavit to be executed by the person responsible for the search, attesting to the measures taken to search for the records, and attesting to whether the requested records may be located in another West Hartford agency or department.  The affidavit shall be provided within 28 days of the issuance of this final decision.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 26, 2007.

 

 

________________________________

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:

 

William R. Scaringe

PO Box 270969

West Hartford, CT 06127-0969

 

Superintendent of Schools,

West Hartford Public Schools; and

Board of Education,

West Hartford Public Schools

c/o Kimberly Boneham, Esq.

50 South Main Street

West Hartford, CT 06107

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-527FD/paj/9/28/2007