FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 9, 2008, at which time the complainant and 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 e-mail dated January 14, 2008, the complainant made a request to the respondent superintendent to review “all correspondence and communication – written, electronic, telephone, and faxes from you, your administration, and the Board both to and from the CT DPH from June 2007 to present” and to review “the results of any water, radon, uranium, asbestos or other environmental testing done for Brookfield schools during the same time period up to and including today.”

 

3.      By e-mail dated January 29, 2008, the complainant was informed that records responsive to his request were available. 

 

4.      By e-mail dated February 13, 2008 and filed on February 14, 2008, the complainant appealed to this Commission, alleging that the respondents failed to provide all records responsive to his request and requesting the imposition of a civil penalty for failing to fully comply with his January 14, 2008 request.

 

5.      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.

 

6.      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. 

 

7.      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 . . . .”

 

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

 

9.       At the hearing on this matter, the complainant contended that he should not have had to pay for the records when he only requested to review them.

 

10.   It is found that the complainant was provided with approximately ninety-four pages of records, which were already photocopied for him when he arrived to inspect them, and the complainant, although not asked to, paid for them at the cost of forty-seven dollars.

 

11.   It is found, however, that it is the respondents’ practice, as a matter of administrative efficiency, to photocopy an original record in order that it may be re-filed immediately rather than allowing them to sit in a box for weeks and potentially be misplaced.  It is found that the complainant was free to simply inspect the photocopies and was not asked by the respondents to pay for them before inspecting them. 

 

12.   At the hearing on this matter, the complainant contended that the respondent failed to comply promptly with a request he contends should not have taken more than five days because the information regarding radon was in a single book, there were no records regarding communications between the respondent and DPH, and there was “nothing special” among the ninety-four records for which he paid.

 

13.   It is found that the respondents assigned two staff members to conduct the search for responsive records which search was conducted during the respondent board’s budget season and during building renovations.

 

14.   It is found that the records responsive to the complainant’s request were available within 11 business days after the two staff members culled through many files located in several different places. 

 

15.   It is found that the respondents did not unduly delay complying with the complainant’s records request.

 

16.   Based upon the findings in paragraphs 13 through 14, above, it is found that the respondents complied promptly with the complainant’s records request within the meaning of §§1-210(a) and 1-212(a), G.S.

 

17.   At the hearing on this matter, the respondents contended that they have conducted a thorough search for records responsive to the complainant’s records request and have provided him with copies of and/or access to all records responsive to his request.

 

18.   With respect to the complainant’s allegation that the respondents failed to provide him with access to inspect all records responsive to his request, the complainant explained, at the hearing on this matter, that he believed the respondents failed to provide all records responsive to his request because of an e-mail written by the Health Program Supervisor of the Radon Program for DPH.  It is found that the e-mail was sent to a Diane Cerasoli of the Brookfield Public Schools and states that it is in response to Brookfield Public Schools’ building supervisor, Mr. Dan Schetzle’s, “request for a statement from the DPH Radon Program regarding the evaluation of radon in water in public schools.”  The complainant contended that he should have at least been provided with a copy of Mr. Schetzle’s correspondence requesting the statement.  The complainant also referred to all of the contested cases in which the town of Brookfield, or the superintendent of schools for the town of Brookfield, was the respondent in a complaint to this Commission, contending that Brookfield has a history of not fully complying with FOI requests and that the respondents’ failure to comply in this case is consistent with Brookfield’s past violations of the FOI Act. 

 

19.   The Commission takes administrative notice of the record and final decisions in the following contested cases: Docket #FIC 1993-324, Glenn J. Cooper and Glenn J. Cooper, Detective Agency, Inc. v. Superintendent of Schools, Brookfield Public Schools; Docket #FIC 1993-328, Glenn J. Cooper and Glenn J. Cooper, Detective Agency, Inc. v. Superintendent of Schools, Brookfield Public Schools; Docket #FIC 2005-250, Frederick Hesse v. Superintendent of Schools, Brookfield Public Schools; Docket #FIC 2005-255, Frederick Hesse v. Superintendent of Schools, Brookfield Public Schools; Docket #FIC 2006-125, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools; Docket #FIC 2006-420, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools; Docket #FIC 2007-032, Frederick Hesse v. First Selectman, Town of Brookfield; and Docket #FIC 2007-502, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools.

 

20.   It is found that Docket #FIC 2006-125, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools and Docket #FIC 2006-420 Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools are among a series of cases in which the respondent was found to have failed to provide all records responsive to the complainant’s request after having represented that he had. 

 

21.   It is also found, however, that most of the contested cases referred to by the complainant were dismissed or the Commission did not recommend an order at all. 

 

22.   It is further found that Mr. Schetzle’s request for a statement from the DPH Radon Program was not a written request but rather a verbal request. 

 

23.   However, based upon the finding in paragraph 20, above, it is found that it is reasonable for the complainant to have questioned the thoroughness of the respondents’ search for records responsive to his request.

 

24.   It is also found, however, that there are no records, other than those already provided to the complainant, responsive to his request. 

 

25.   It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a), and 1-212(a) G.S.

 

26.   Consequently, the Commission declines to consider the complainant’s request for a civil penalty.

 

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

 

1.      The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 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:

 

Frederick Hesse

9 Windwood Road

Brookfield, CT 06804

           

Anthony Bivona, Superintendent of

Schools, Brookfield Public Schools;

and Board of Education, Brookfield

Public Schools

c/o Patrick J. McHale, Esq.

Kainen, Escalera & McHale, P.C.

21 Oak Street, Suite 601

Hartford, CT 06106-8003

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-106FD/paj/9/2/2008