FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as contested case on December 10, 2007 and January 25, 2008, at which times 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 letter, dated June 22, 2007, the complainant made a request to the respondent for copies of: a) the data used by the Department of Environmental Protection (“DEP”) to determine deer density in Connecticut; and b) the description of the methodology used by the DEP to determine deer density in Connecticut.

 

3.  It is found that by letter dated June 26, 2007 the respondent acknowledged the complainant’s request, stating that a “review will be conducted as promptly as possible.” By a second letter dated July 17, 2007, the respondent described “the methodology used to estimate deer density in Connecticut” and attached two tables with “specific information about deer counts in each deer management zone.” This second letter dated July 17, 2007 declined to provide “scientific references…because [an] article [referenced by the complainant] was prepared for the general public, not for publication in a scientific journal.”

 

4.  By an additional request letter, dated July 21, 2007, the complainant made a similar, but not identical, request to the respondent for copies of: a) a description of the formulas and variables used by the DEP to determine deer density in Connecticut; and b) the scientific references upon which those factors are based. (All four requests set forth in paragraph 2 as well as this paragraph describe the “requested records” or the “records”).

 

5.  By letter dated August 13, 2007 and filed with the Commission on August 15, 2007, the complainant appealed to the Commission, alleging that the respondent’s failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainant also requested that civil penalties be assessed against the respondent.

 

6.  Section 1-200(5), G.S., states:

 

“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.

 

7.  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. 

 

8.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.  It is found that, after the first hearing, on December 12, 2007, the respondent provided the complainant with a list of eleven scientific references in response to the second request letter, dated July 21, 2007 (specifically, in response to the portion of the letter described at subsection b in paragraph 4, above). On January 4, 2008, the complainant responded to the receipt of the list of scientific references with an email posing numerous additional questions. After January 4, 2008 and before the January 25, 2008 hearing, three representatives of the respondent met with the complainant in order to review and explain the records provided to the complainant. The requested records have a technical, scientific underpinning, and at this meeting, the DEP representatives apparently sought to respond to the complainant’s inquiries concerning the determination of deer density in Connecticut.    

 

10.  At the January 25, 2008 hearing, the complainant stated that he had still not received certain records. He testified that he had not received a mathematical factor that the credible testimony of a representative of the respondent indicated was used in only one local study.  The respondent also argued that this mathematical factor was used to “interpret” calculations of deer density, rather than to make such calculations. The complainant also testified that he had not received regression analysis that the respondent “should have.”

 

11.  It is finally found that both the respondent’s letter dated July 17, 2007 and the list of scientific references were not records that the respondent maintained prior to the complainant’s requests, but rather were records generated specifically to respond to the complainant. The letter dated July 17, 2007 explained practices and procedures which the DEP does not have detailed elsewhere. The list of scientific references was a listing of selected articles from the DEP library that the respondent used to determine deer density in Connecticut. Specifically, a representative of the respondent, Greg Chasko, reviewed his “G” drive, where all relevant records are stored, to search for all requested records concerning the determination of deer density in Connecticut.           

 

12.  It is concluded that Connecticut is divided into thirty-seven “transects” to determine deer density. It is further concluded that a mathematical factor that was used in only one local study was not “used to determine deer density in Connecticut,” and therefore was not within the scope of the requests set forth at paragraphs 2 and 4.      

 

13.  It is concluded that the respondent did a diligent search for the requested records and has provided the complainant with all records it maintains within the scope of the complainant’s requests set forth at paragraphs 2 and 4. It is further concluded that the complainant, who has impressive technical credentials, is seeking a degree of precision in the process of calculating the deer density in Connecticut, which the DEP’s own publications state simply does not exist. The respondent has no FOIA obligation to provide a record concerning regression analysis that the respondent does not maintain, but that the complainant believes he “should have.”

 

 14.  It is concluded that the respondent did not provide the complainant with the scientific references promptly, following the complainant’s request on July 21, 2007. (Though it may have been more economical or courteous to compile a new list, which was not required by the FOIA, the respondent, to meet FOIA requirements, could have provided the complainant in late July or early August with the cover pages of articles maintained in the DEP library.)

 

15.  It is concluded that the respondent technically violated §§1-210(a) and 1-212(a), G.S., by failing to provide the scientific references promptly.

 

16.  With respect to the complainants’ request for the imposition of a civil penalty, §1-206(b)(2), G.S. 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.

 

17.  Based on the findings in paragraph 11 concerning the generation of the July 17, 2007 letter, and the meeting that the respondent held with the complainant as set forth in paragraph 9, the Commission, in its discretion, concludes that the respondent’s failure to comply with the FOIA was not without reasonable grounds.  The Commission declines to impose a civil penalty, noting that the respondent was in several respects forthcoming and flexible with the complainant.

 

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

 

1.      Henceforth, the respondent shall provide records promptly.

 

2.   The Commission recognizes that the Department of Environmental Protection has generally been affirmative in its compliance with the Freedom of Information Act.         

 

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

 

Michael A. Gorfinkle

48 Fire Hill Road

West Redding, CT 06896

           

Edward Parker, Chief,

State of Connecticut, Department of

Environmental Protection, Bureau

of Natural Resources

c/o Melinda M. Decker, Esq.

Agency Legal Director

Office of Legal Counsel

State of Connecticut

Department of Environmental Protection

79 Elm Street

Hartford, CT 06106

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-436FD/paj/5/20/2008