FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 4, 2008, 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 case was consolidated with Docket #FIC 2007-418; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10 and Docket #FIC 2007-421; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10.  The Commission takes administrative notice of the administrative record in the aforementioned contested cases.

 

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 August 17, 2007, the complainant made the following request to the respondent:

 

a.       “access to inspect and/or receive copies of any and all records related to your policy with Massamont Insurance, including but not limited to, the policy itself, billing statements, payments, rates and changes;” and

 

b.      “any and all records related to the civil rights lawsuit, Doninger v. Schwartz, Niehoff, et al., which records would include but are not limited to, the  retainer agreement, indemnification clause, retainer check and other checks and invoices; also, meeting minutes, memorandums, phone logs and e-mails regarding the administration’s handling of these matters.”

 

The complainant informed the respondent that he would file a complaint with this Commission, and request civil penalties, if she failed to comply promptly with his request.  The complainant indicated that by prompt he meant “immediately” unless the respondent could “demonstrate to the FOI Commission that complying with his request interfered with the normal course of business.”

 

3.      By letter dated and filed on August 28, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his August 17, 2007 records request.  The complainant requested the imposition of a one thousand dollar civil penalty against the respondent and an order that she attend an FOI workshop.

 

4.      Section 1-200(5), G.S., provides in relevant part that:

 

“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.

 

5.      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 . . . receive a copy of such records in accordance with section 1-212. 

 

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

 

7.      It is found that, to the extent they exist and are maintained by the respondent, the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      With respect to the complainant’s request described in paragraph 2a, above, it is found that Massamont Insurance Agency is a private entity based in Boston, Massachusetts and is the contracted insurance carrier for Regional School District #10 (hereinafter “the school district”).

 

9.      It is found that by letter dated August 17, 2007, from the respondent’s counsel, the complainant was informed that the school district maintains records responsive to the complainant’s request described in paragraph 2a, above, but that they could not be made available to him on that day and asked that the complainant contact the school district’s business manager to make arrangements to have the records photocopied.

 

10.   It is found that in response to the complainant’s request described in paragraph 2a, above, the business manager for the school district was able to provide the complainant with a copy of a July or August 2007 letter received from Massamont Insurance Agency on August 17, 2007.

 

11.   It is found that, at the time of the complainant’s request, the school district had records pertaining to its 2006 – 2007 insurance policy (which included the policy, billing statements, and records of payments), but the school district had not yet been provided with a copy of the 2007-2008 insurance policy from Massamont Insurance Agency.

 

12.   It is found that, on August 17, 2007, arrangements were made with the complainant for him to obtain a copy of the records pertaining to the school district’s 2006 – 2007 insurance policy within a week of his request and that the business manager offered to contact the complainant as soon as the school district received the records pertaining to its 2007 – 2008 insurance policy.

 

13.   With respect to the timeliness of the respondent’s compliance, it is found that the respondent’s offices, as well as those of most of the school district’s administration, were under reconstruction and that she and the business manager were working from temporary sites with most of their records and files packed away in storage.

 

14.   It is found, therefore, that the records pertaining to the 2006-2007 insurance policy were not immediately available for production to the complainant, but were located, retrieved, and made available to the complainant within less than a week from his request.

 

15.    It is found that the complainant was provided with a copy of the records pertaining to its 2006 – 2007 insurance policy without undue delay and it is concluded that they were provided promptly within the meaning of §§1-210(a) and 1-212(a), G.S.

 

16.    It is also found that on November 1, 2007, the complainant was informed that the 2007-2008 insurance policy was available for copying; however, the complainant indicated that he preferred to inspect the records.  It is found that, as of the January 4, 2008 hearing in this matter, the complainant had not inspected the 2007-2008 insurance policy.

 

17.    It is concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., with respect to the complainant’s records request described in paragraph 2a, above.

 

18.   With respect to the complainant’s request described in paragraph 2b, above, the complainant was informed that the school district does not maintain a retainer agreement, indemnification clause, retainer check or any other checks or invoices, or meeting minutes from Howd & Ludorf regarding the federal court case of Doninger v. Schwartz, Niehoff, et al. (hereinafter “the federal court case”) but offered the complainant a copy of a letter regarding the board’s insurance coverage for the lawsuit. 

 

19.   It is found that Howd & Ludorf is a private law firm with offices in Hartford, Connecticut and in Wellesley, Massachusetts.

 

20.   It is found that Massamont Insurance Agency retained, by an agreement, the law firm of Howd & Ludorf to represent the respondent, a Ms. Karissa Niehoff (a high school principal), and the school district, in the federal court case.  It is also found that neither the respondent, nor the school district, are parties to that agreement.

 

21.   It is found that neither the respondent, nor the school district, were ever provided with the retainer agreement between Massamont Insurance Agency and Howd & Ludorf, or any records related to that agreement, and do not maintain any records in that regard.

 

22.    It is found that neither the respondent, nor the school district, were sent bills for the services rendered by Howd & Ludorf pursuant to the retainer agreement, or any records related to such bills, and do not maintain any records in that regard.

 

23.    It is also found that neither Massamont Insurance, nor Howd & Ludorf, is a public agency; therefore, neither entity is subject to the disclosure provisions of the FOI Act.

 

24.   It is also found that neither the respondent nor the school district are “handling” the federal court case and do not maintain any meeting minutes, memorandums, phone logs and e-mails in that regard.

 

25.   It is found, however, the respondent did receive a letter from Massamont Insurance Agency informing her that Howd & Ludorf had been retained to represent her in the federal court case. 

 

26.   As already found in paragraph 18, above, the complainant was offered a copy of the letter described in paragraph 25, above, but it is also found that the complainant apparently never indicated that he wanted a copy of that letter and it was not provided to him.

27.    It is found, however, that the letter described in paragraph 25, above, falls within the scope of the complainant’s request described in paragraph 2b, above, and that it should have been provided to the complainant in response to his records request.

 

28.   It is concluded, therefore, that the respondent violated §§1-210(a) and 1-212(a), G.S., for failing to provide the complainant with a copy of the letter described in paragraph 25, above.

 

29.   At the hearing on this matter, the complainant contended that he should have been provided with a copy of records reflecting the deductible paid to Massamont Insurance Agency in response to his request described in paragraph 2b, above.  The complainant also contended that the insurance premium and deductible for the respondent’s insurance coverage are paid with taxpayer dollars and therefore, all of the records he requested are public records and that the respondent is obligated to obtain them and provide them to him.                                

 

30.   With respect to the complainant’s contention that he should have been provided with a copy of the records reflecting the deductible paid to Massamont Insurance Agency, it is found that, at the time of the complainant’s request, the school district had not paid a deductible with respect to the federal court case because it had not been sent a bill for the deductible.  It is found, therefore, that the respondent does not maintain records of the school district’s payment of the deductible.

 

31.   It is also found that the services rendered by Howd & Ludorf are paid by Massamont Insurance Agency and no town funds are directly used to pay for such services.

 

32.   It is further found, based on the facts and circumstances of this case, that the retainer agreement and bills from Howd & Ludorf for the services rendered pursuant to that agreement, and any records related to either, that are maintained by either Massamont Insurance Agency or Howd & Ludorf, are not records of the respondent or the school district and therefore, are not public records within the meaning of §1-210(a), G.S.  Consequently, the town has no legal obligation to obtain the records from Massamont Insurance Agency or Howd & Ludorf, and provide them to the complainant.

 

33.   It is concluded, therefore, that the respondent did not violate §§1-210(a) or 1-212(a), G.S., by failing to provide the complainant with the records described in paragraph 2b, above. 

 

34.   Notwithstanding the conclusion in paragraph 28, above, the Commission declines to consider the imposition of a civil penalty in this matter.   The complainant’s request for an order for the respondent to attend an FOI workshop is hereby denied.

 

 

 

 

On the basis of the record concerning the above-captioned complaint, no order is recommended by the Commission.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 11, 2008.

 

 

________________________________

S. Wilson

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:

 

Andy Thibault 

P.O. Box 1415

Litchfield, CT 06759

           

Paula Schwartz, Superintendent

of Schools, Regional School

District #10 

c/o Christine L. Chinni, Esq. and

Craig S. Meuser, Esq.

Chinni & Meuser LLC

30 Avon Meadow Lane

Avon, CT 06001

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-458FD/sw/6/13/2008