FIC2007-281

4. It is found that the selectmen’s executive assistant acknowledged the request on April 30, 2007, but did not provide any of the records until September 18, 2007, despite reminders by the complainant, including reminders on June 14, 2007, and July 18, 2007.

5. It is found that all of the requested records pertained to an employment discrimination grievance filed by the individuals referenced in paragraph 3, above, against the complainant.

6. It is found that the complainant communicated to the executive assistant his pressing need for the information.

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 that:

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), G.S., provides: “Any 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 requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

11. The respondents contend that the records were provided promptly, considering the other duties of the executive assistant, including preparation of the town budget; because the first selectman once reminded his executive assistant to provide the records “as soon as he could;” and because the assistant was interrupted, or forgot, or didn’t know what prevented him from giving access, or first had to put the records in chronological order, or had to segregate exempt records, or didn’t recall why the complainant sought the records, or didn’t believe that the complainant’s need was truly pressing.

12. The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission. In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. The Commission also gave the following guidance:

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act. Providing such access is therefore as much a part of their mission as their other major functions. Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority. Thus, it should take precedence over routine work that has no immediate or pressing deadline.

13. The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities: the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

14. It is found that the executive assistant disregarded the complainant’s expressed pressing need for the information, and substituted his own judgment as to whether the complainant had a pressing need for the requested records.

15. It is found that the executive assistant, during the time that he had failed to even partially fulfill the complainant’s request, found time to respond to requests for related information from the press and from the four individuals identified in paragraph 3, above.

16. Despite the respondents’ contention to the contrary, it is found that the requested records were primarily located in convenient locations, in a single file folder in the executive assistant’s office, and in a number of different folders in a secretary’s office. It is further found that the records located in the secretary’s office, comprising approximately half of the requested records, took approximately one month or less for the secretary to compile.

17. It is found many of the reasons expressed by the executive assistant for his failure to promptly provide the requested records—that he was interrupted, that he forgot, that he didn’t know what prevented him from giving access, that he had to first put the records in chronological order, that he had to segregate exempt records, and that he didn’t recall why the complainant sought the records—are not credible, and additionally do not justify the extended delay in providing the records until the eve of the hearing on this matter. It is specifically found that the respondents did not ultimately claim that any of the requested records were exempt from disclosure, or withhold any records on this basis.

18. It is concluded that the requested records were not provided promptly within the meaning of §§1-210(a) and 1-212(a), G.S.

19. With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2) provides in relevant part:

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

20. Unlike Docket #FIC 2007-144, which was consolidated with this matter, it is not apparent that the respondent first selectman is the official directly responsible for the denial of the complainant’s right to receive copies of correspondence to and from the board of selectmen as a whole. In this case, the request was directed to the board of selectmen, and concerned correspondence pertaining to each of the board members individually, not just the first selectman’s correspondence.

21. Nonetheless, it is concluded that the violations of the FOI Act in this case were not inadvertent and may not be attributed solely to “unusually chaotic and difficult circumstances.”

22. Specifically, it is found that the reasons given for the extensive delay in providing any records to the complainant were not credible, and do not constitute reasonable grounds for such an extensive delay.

23. However, the only individual against whom the complainant sought civil penalties in this matter is the respondent first selectman, and it is concluded that the first selectman is not the custodian or other official directly responsible for the denial, within the meaning of §1-206(b)(2), G.S.

24. Additionally, the Commission believes that the imposition of a civil penalty in the consolidated case Docket #FIC 2007-144, Larry Freundlich v. Michael Pace, First Selectman, Town of Old Saybrook; and Board of Selectmen, Town of Old Saybrook, sufficiently communicates the Commission’s conclusions regarding the violation of the complainant’s rights in these two cases.

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

1. Henceforth the respondents shall strictly comply with the requirements of

§§1-210(a) and 1-212(a), G.S.

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:

Larry Freundlich

Director

Youth and Family Services

322 Main Street

Old Saybrook, CT 06475

Michael Pace, First Selectman,

Town of Old Saybrook; and

Board of Selectmen,

Town of Old Saybrook

c/o Lisa S. Lazarek, Esq.

Kainen, Escalera & McHale, P.C.

21 Oak Street

Hartford, CT 06106

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2007-281FD/paj/3/3/2008

In the Matter of a Complaint by			FINAL DECISION
Larry Freundlich,
		Complainant
	against		Docket #FIC 2007-281
Michael Pace, First Selectman, Town of Old Saybrook; and Board of Selectmen, Town of Old Saybrook,
		Respondents	February 27, 2008