FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 24, 2009 at which time the complainant and the 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 2008-247, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; Gale Plancon, Interim Assistant Administrator, Board of Selectmen, Town of Branford; and Board of Selectmen, Town of Branford; and Docket # FIC 2008-445, Dawn Massey v. First Selectman, Town of Branford; and Board of Selectmen, Town of Branford.

 

At the request of the parties, this Commission takes administrative notice of the record and final decision in Docket # FIC 2008-078, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; Gale Plancon, Interim Assistant Administrator, Board of Selectmen, Town of Branford; and Board of Selectmen, Town of Branford; Docket # FIC 2008-081, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; Gale Plancon, Interim Assistant Administrator, Board of Selectmen, Town of Branford; and Board of Selectmen, Town of Branford; Docket  # FIC 2008-193, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; and Board of Selectmen, Town of Branford; and Docket # FIC 2008-194, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; and Board of Selectmen, Town of Branford.

 

At the request of the parties, this Commission takes administrative notice of only the record in Docket # FIC 2008-149, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; Gale Plancon, Interim Assistant Administrator, Board of Selectmen, Town of Branford; and Board of Selectmen, Town of Branford; Docket # FIC 2008-195, Dawn Massey v. Anthony DaRos, First Selectman, Town of Branford; and Board of Selectmen, Town of Branford; and Docket # FIC 2008-295, Dawn Massey v. 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.      By letter dated March 13, 2008, to the respondent interim assistant administrator, the complainant, through her agent Misty Williams, made a request for “certified copies of the retainer/fee agreement between the Town of Branford and the Ullman and Perlmutter law firm and/or Attorney Irving Perlmutter and/or Attorney Andrew Ullman – for defense against the 2007 tax appeal lawsuit brought by William Massey and Dawn Massey.”

 

3.      By letter dated March 14, 2008, to the complainant’s agent, the respondent first selectman acknowledged receipt of the complainant’s request and indicated that she would be notified “once the review is complete and the documents, if any, are available.”

 

4.      By letter dated and filed on April 9, 2008, the complainant, through her agent, filed a complaint with this Commission alleging that the respondents violated the Freedom of Information Act by failing to promptly comply with her request.  The complainant requested that civil penalties be imposed against the respondents.

 

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 respondents maintain one record responsive to the complainant’s request which record is a public record within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

9.      It is found that on May 12, 2008, the complainant received a copy of a retainer/fee agreement.

 

10.   It is found that the record described in paragraph 9 above, is the only record maintained by the respondent that is responsive to the complainant’s request and that provision of that record complied with the complainant’s request within the meaning of §§1-210(a) and 1-212(a), G.S.

 

11.   With respect to the timeliness of the respondents’ response, the meaning of the word “promptly” is a 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.

 

12.   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.

 

13.   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.

 

14.   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 severe staffing shortages and were undergoing reorganization at the direction of the town’s newly elected first selectman.

 

15.  It is found that neither the complainant, nor her agent, indicated to the respondents that the requested record was needed by a certain date.

 

16.   It is also found that because of the volume and frequency of the complainant’s requests for records, and the contentious history between the complainant, her agent, Misty Williams, and the respondent town’s officials and employees, the respondents are ultra sensitive with respect to requests from the complainant and exercise an over-abundance of caution when responding to such requests, which accounts for some of the delay.

 

17.   It is also found that the respondents receive and respond to many other FOI requests which have not generated any complaints to this Commission.

 

18.   At the hearing on this matter, the respondent first selectman acknowledged that there was a delay and stated that he had no explanation for it, that he would not offer any “excuses” and that it should not have taken two months to provide the complainant with the requested record. 

 

19.   The Commission commends the respondents for acknowledging the unexplained delay and find that the respondents inadvertently failed to promptly comply with the complainant’s request within the meaning of §§1-210(a) and 1-212(a), G.S.  

 

20.   It is concluded, therefore, that the respondents violated the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

21.   It is found, however, that the respondents are committed to providing prompt access to all members of the public, including the complainant, and are making efforts to ensure that the delay that occurred in this case does not occur again.

 

22.   Based on the facts and circumstances in this case, the Commission declines to consider the complainant’s request for an imposition of civil penalties.

 

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 promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of March 25, 2009.

 

 

____________________________

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:

 

Dawn Massey

C/o Misty Williams

225 Stony Creek Road

Branford, CT 06405

 

Anthony DaRos, First Selectman,

Town of Branford; Gale Plancon,

Interim Assistant Administrator,

Board of Selectmen, Town of

Branford; and Board of Selectmen,

Town of Branford

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

Clendenen & Shea, LLC

Attorneys at Law

400 Orange Street

New Haven, CT 06511

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-246FD/sw/3/26/2009