FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 6, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2007-327; Joanne Avoletta v. Board of Education, Torrington Public Schools.

 

            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 dated April 16, 2007 and filed on April 18, 2007, the complainant appealed to this Commission, alleging that the respondent failed to comply with the Commission’s orders in Docket #FIC 2005-604, Joanne Avoletta v. Board of Education, Torrington Public Schools (hereinafter “Docket #FIC 2005-604”) and Docket #FIC 2006-418, Joanne Avoletta v. Board of Education, Torrington Public Schools (hereinafter “Docket #FIC 2006-418”).  The complainant also asked that Docket #FIC 2006-418 “remain open.” 

 

            3.  The Commission takes administrative notice of the record and final decision in Docket #FIC 2005-604, in which the complainant prevailed, and wherein the Commission ordered:

 

“1.  The respondent shall forthwith provide the complainant with a copy of IC# 2005-604-1 through IC# 2005-604-14, at no charge.”

 

4.  The Commission notes that the issue of whether the respondent complied with the order in Docket #FIC 2005-604 was decided in Docket #FIC2006-418. 

5.  The Commission also takes administrative notice of the record and final decision in Docket #FIC 2006-418, wherein the Commission ordered:

 

“1.  The respondent shall forthwith provide the complainant with all the requested records, including but not limited to the “Torrington Middle School Conditions Found Report.”

           

6.  At the hearing in this matter, the complainant first testified that she had not been provided with all records described in paragraphs 3 and 5, above.  The complainant then testified that she had been provided with all such records.  The respondent contended that it has provided the complainant with all records at issue.   

 

            7.  It is found that the respondent has complied with the orders in Docket #FIC 2005-604 and Docket #FIC 2006-418.

 

            8.  With respect to the complainant’s request that Docket #FIC 2006-418 “remain open,” the Commission notes that such docket is not open but closed.  At the hearing in this matter, it became clear that what the complainant actually seeks is a finding that the respondent violated an interim order for inspection of in camera records in Docket #FIC 2005-604.  In order to make such a finding, the Commission would have to reconsider Docket #FIC 2005-604.  Such a request to reconsider Docket #FIC 2005-604 was not made in the complaint.  Moreover, reconsideration of a closed final decision is an extraordinary event. See paragraph 9, below.  

 

            9.  Section 4-181a, G.S., provides in relevant part:

 

(a)(1) Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition.

(2) Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision.

 

(3) If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming or reversing the final decision, provided such decision made after reconsideration shall be rendered not later than ninety days following the date on which the agency decides to reconsider the final decision. If the agency fails to render such decision made after reconsideration within such ninety-day period, the original final decision shall remain the final decision in the contested case for purposes of any appeal under the provisions of section 4-183.

 

(4) Except as otherwise provided in subdivision (3) of this subsection, an agency decision made after reconsideration pursuant to this subsection shall become the final decision in the contested case in lieu of the original final decision for purposes of any appeal under the provisions of section 4-183, including, but not limited to, an appeal of (A) any issue decided by the agency in its original final decision that was not the subject of any petition for reconsideration or the agency's decision made after reconsideration, (B) any issue as to which reconsideration was requested but not granted, and (C) any issue that was reconsidered but not modified by the agency from the determination of such issue in the original final decision.

(b) On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.

10.  It is concluded that the time for reconsideration of the final decision in Docket #FIC2005-604, pursuant to§4-181a(a), G.S., has long expired.

 

11.  With respect to a reversal or modification of the final decision in Docket #FIC2005-604, pursuant to §4-181a(b), G.S., such an event requires a showing of changed conditions. 

 

12.  In State v. Freedom of Information Commission, 2001 Conn. Super. LEXIS 3640 (Conn. Super. Ct. 2001), the Court found that the Commission was fully justified in reopening a final decision after the Commission had initially approved the original version of the proposed decision that called for exempting an investigative summary from disclosure.  The Court found that the official release of a contrary Connecticut Supreme Court decision, a day prior, was “late-breaking developments fully” constituting a “showing of changed conditions” under § 4-181a(b), G.S.

 

13.  It is found that, since the issuance of the final decisions in Docket #FIC 2005-604 and Docket #FIC 2006-418, the complainant has made numerous public records requests of the respondent, and, in response, the respondent has provided the complainant with copies of numerous public records.

 

14.  It is found that, in the course of one of the requests described in paragraph 13, above, the respondent provided the complainant with a record which the complainant believes should have been provided to the Commission for in camera inspection in Docket #FIC 2005-604.   It is found, however, that such record was not in existence at the time of the complainant’s request in Docket #FIC 2005-604, and thus, was not at issue in such matter. 

 

15.  The respondent provided the complainant with the record described in paragraph 14, above, months before the hearing in this matter.  When asked by the hearing officer as to the purpose of reopening Docket #FIC 2005-604, the complainant stated that she wished the Commission to find that the respondent was wrong.  It is found that there is no purpose in reopening Docket #FIC 2005-604, a case in which the complainant prevailed, to order the disclosure of a record which was not at issue in such matter and which the respondent has already provided to the complainant.   

 

            16.  Based on the facts and circumstances of this case, it is found that the complainant has not made a showing of changed conditions, within the meaning of §4-181a(b), G.S.  The Commission therefore declines to reconsider Docket #FIC 2005-604. 

 

17.  At the hearing in this matter, the respondent stipulated that it is aware that environmental reports and records such as those generally sought by the complainant are public records, which must be disclosed upon request.  The complainant is not prevented from making further requests of the respondent and, if denied access to requested records, filing new complaints with the Commission. 

 

18.  Based on the facts and circumstances of this case, it is concluded that the respondent did not violate the FOI Act.   

 

On the basis of the record concerning the above-captioned complaint, the following order is recommended by the Commission:

1.  The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 2008.

 

________________________________

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:

 

Joanne Avoletta

13 School Street

Torrington, CT 06790

           

Board of Education,

Torrington Public Schools

c/o Victor M. Muschell, Esq.

Muschell & Simoncelli, LLP

104 Church Street

Torrington, CT 06790

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-233FD/paj/3/10/2008