FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on January 30, 2009, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above- captioned matter was consolidated with Docket # FIC 2008-195, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; and Board of Selectmen, Town of Branford.

 

            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.      It is found that, by letter dated April 3, 2008, the complainant made a request to the respondents for:

 

the opportunity to view the Town’s billing records for the cell phone

or cell phones issued to Trista Clyne (now known as Trista Milici) paid

for by the Town of Branford from January 1, 2001 through the date I am

given the opportunity to view all such records – disclosing the telephone

numbers for all incoming and outgoing telephone calls.

 

3.       It is found that, by letter dated April 9, 2008 (“April 9^th letter”), the respondents acknowledged the complainant’s request for copies of records, described in paragraph 2, above. 

 

4.      By letter dated and filed on April 25, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request described in paragraph 2, above.  The complainant also requested the imposition of civil penalties against the respondents.

 

5.      Section 1-200(5), G.S., defines “public records or files” as:

 

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 (1) inspect such records promptly during regular office or business hours . . . (3) 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 respondents maintain the records, described in paragraph 2, above, and that such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

9.      It is found that, by letter dated April 28, 2008, the respondents asked the complainant to contact the Town of Branford Finance Department to schedule an appointment to review the requested records in order for the respondents to arrange to have someone supervise the inspection and to ensure that the complainant would have sufficient time to inspect the records.

 

10.    It is found that, sometime in early May 2008, the complainant inspected the records made available by the respondents.  It is also found that, once the complainant viewed the records, she then requested copies of some of the records she inspected.  It is found that such records are responsive to the request described in paragraph 2, above.  At the hearing in this matter, however, the complainant claimed that the respondents failed to respond to the request, described in paragraph 2, above, promptly.

 

11.    The complainant contends that the respondents impermissibly required her to make an appointment to inspect the requested records.

 

12.    It is found, however, that the respondents requested, but did not require the complainant to schedule an appointment, and that the complainant did not object to the request at the time.

 

13.    With respect to the complainant’s claim that the records, described in paragraph 2, above, were not provided to her “promptly,” the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  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. 

 

14.    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.

 

15.    The Commission takes administrative notice of the multitude of records requests filed with the respondents by the complainant, as well as the multitude of corresponding appeals filed by the complainant with the FOI Commission against the respondents, between 2004 and 2008.

 

16.    It is found that, between November 2007 and March 2008, the complainant submitted approximately 30 requests for records to the respondents.  In addition, it is found that, at the time of the request, described in paragraph 2, above, the respondents were experiencing staffing shortages.

 

17.    It is found that the complainant’s request described in paragraph 2, above, required the respondents to search cell phone billing records covering a seven-year period, from 2001 to 2008.

 

18.    It is found that the respondents have accumulated voluminous billing records for cell phones issued to town employees.  It is also found that cell phone records for individual town employees are all part of one large bill. 

 

19.    It is found that the respondents submitted all the cell phone billing records, described in paragraph 17, above, to Town Counsel for their review because there was some concern that the records, described in paragraph 17, above, may have included details of police department cell phone billing records pertaining to such matters as “sensitive” criminal investigations.  It is found that the police department consists of approximately 70 employees.    

 

20.    It is found that, although review by Town Counsel, as described in paragraph 19, may have been excessively cautious, it was not unreasonable.

 

21.    It is found that the respondents compiled over 200 pages of billing records in response to the complainant’s request described in paragraph 2, above, and made them available to the complainant without redactions.

 

22.    It is found that the respondents diligently attempted to provide a complete and prompt response to the complainant.

 

23.    It is found that the complainant had so many requests and complaints pending against the respondents that the respondents could not reasonably have responded any earlier.

 

24.    It is found that there was no undue delay in obtaining the records, described in paragraph 2, above, because any delay was caused by the volume and frequency of the complainant’s requests for records, and the difficulty in satisfying the complainant.

 

25.    It is found that, under the facts and circumstances of this case, the respondents’ provision of the requested records, described in paragraphs 2, 8, 9 and 17, above, ­­­­was prompt within the meaning of §1-210(a), G.S.

 

26.    It is concluded, therefore, that the respondents did not violate the FOI Act as alleged in the complaint.

 

            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 March 11, 2009.

 

 

____________________________

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:

 

Dawn Massey

c/o Misty Williams

225 Stony Creek Road

Branford, CT 06405

 

First Selectman, Town of

Branford; and Board of Selectmen,

Town of Branford

c/o William H. Clendenen, Jr., Esq.

Clendenen & Shea, LLC

400 Orange Street

New Haven, CT 06511

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2008-295FD/paj/3/13/2009