FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard by Commissioner Vincent M. Russo as a contested case on October 27, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At its regular meeting of February 11, 2009, the Commission unanimously appointed Commissioner Sherman D. London to prepare a proposed final decision in this matter, due to the recent death of Commissioner Russo.  On March 13, 2009, Commissioner London reviewed the evidence in this case, listened to the recording of the hearing that had taken place on October 27, 2008, and issued the following proposed final decision.

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 July 8, 2008 and filed July 14, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by not complying with a final Commission decision reached in a previous complaint that the complainant had filed against this respondent.

 

3.      The Commission takes administrative notice of the final decision in Docket #FIC 2007-537; Walter Chmurynski v. First Selectman, Town of Bozrah (May 14, 2008).  In the final decision, the Commission ordered the respondent to retrieve all of the public records in the possession of the former first selectman; to inquire “forthwith” with the former first selectman as to whether there are any additional records in his possession that are responsive to the complainant’s request; and either to provide such responsive records to the complainant or to provide the Commission and the complainant with an affidavit detailing the action taken to secure the additional records, including describe the scope, duration and results of the search for said records in the former first selectman’s possession. 

 

4.      In the instant case, the complainant contends that the respondent failed to comply with the Commission’s May 14, 2008 final decision in the following ways:

 

a.       By not retrieving all of the public records in the possession of the former first selectman, Keith J. Robbins;

b.      By not communicating “forthwith” with the former first selectman as to whether the former first selectman had additional records responsive to the complainant’s request;

c.       By not supplying the complainant with the additional responsive records obtained from the former first selectman or by supplying the Commission and the complainant with an affidavit detailing the action taken to secure the additional records, including the scope, duration and results of the search for such records in the former first selectman’s possession; and

d.      By not supplying the complainant with a copy of the two e-mails that were responsive to the complainant’s request.  (See Walter Chmurynski v. First Selectman, Town of Bozrah, Docket #FIC 2007-537, ¶ 12 (May 14, 2008)). 

 

5.      The complainant has requested that the Commission impose a civil penalty against the respondent, First Selectman William E. Ballinger.  The complainant also requested that the Commission refer First Selectman Ballinger to the Office of the State’s Attorney for improperly disposing of public records. 

6.      At the hearing in this matter, the respondent testified that, upon his taking office as First Selectman in November 2007, the former first selectman provided the respondent with two computer discs containing all of the electronic files that were on a computer that the former first selectman took with him when he left town office.[1]

 

7.      It is found that, subsequent to the Commission’s May 14, 2008 final decision and by letter dated July 17, 2008, the respondent communicated with the former first selectman, requesting that he search all electronic and paper records in his possession to determine if he had any records in addition to the electronic records stored on computer discs identified in paragraph 6, above.  It is further found that, by letter dated July 21, 2008, the former first selectman replied to the respondent that no such additional records existed.  It is further found that, in the July 21, 2008 letter, the former first selectman stated that the search he conducted took him three hours and included both the paper and electronic files in his possession. 

 

8.      It is found that, by affidavit dated August 5, 2008, the respondent attested to both his efforts and the former first selectman’s efforts to confirm that all of the existing records had been searched through to ensure that no additional records responsive to the complainant’s original request existed.  It is further found that the respondent attested to the fact that the only records responsive to the complainant’s original request were an August 24, 2007 email and an August 27, 2007 email. 

 

9.      It is found that, on or about August 8, 2008, the respondent’s counsel sent to the Commission the affidavit described in paragraph 8, above.  It is found that the Commission received the affidavit on August 14, 2008.

 

10.  The respondent testified that it was his intention to allow the appellate period to expire with regard to the Commission’s May 14, 2008 final decision to ensure that the complainant did not intend to appeal any aspect of said final decision, and thereafter to comply with the Commission’s order. 

 

11.  However, it is found that the Commission’s final decision in Docket #FIC 2007-537 was issued on May 14, 2008.  It is further found that said final decision ordered the respondent to communicate “forthwith” with the former first selectman as to whether there were responsive records that had not been provided to the complainant.  It is further found that the respondent did not communicate with the former first selectman until July 17, 2008. 

 

12.  Based on the evidence and the testimony presented in this case, it is concluded that the respondent did not violate the FOI Act as alleged in paragraph 4, subparts a, and c. 

 

13.  It is concluded, however, that the respondent did violate the Commission’s order as alleged in paragraph 4, subpart b, by not communicating with the former first selectman promptly.

 

14.  It is further found that, while the Commission’s May 14, 2008 final decision concluded that the respondent violated the FOI Act by not providing the complainant with a copy of the August 24, 2007 and the August 27, 2007 emails, the Commission found that, at the time of the contested hearing in that matter, the complainant had received copies of these emails from the town’s Zoning Enforcement Officer.  It is further found that the Commission’s May 14, 2008 final decision did not direct the respondent to supply the complainant with an additional copy of these emails. 

 

15.  Accordingly, it is concluded that the complainant did not violate the FOI Act as alleged in paragraph 4, subpart d. 

 

16.  While it is concluded that the respondent failed to communicate “forthwith” with the former first selectman, as set forth in paragraphs 11 and 13, above, it is concluded that such a failure is an insufficient basis upon which to impose a civil penalty.  The Commission, therefore, declines to impose a civil penalty in this matter. 

 

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

 

1.  The respondent is reminded that orders of the Commission should be complied with promptly.    

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 8, 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:

 

Walter Chmurynski

C/o Jon B. Chase, Esq.

Richard S. Cody, P.C.

Attorneys At Law

34 Church Street

Mystic, CT 06355

 

First Selectman, Town of Bozrah

C/o Jeffrey T. Londregan, Esq.

Conway & Londregan, P.C.

38 Huntington Street

New London, CT 06320

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-465FD/sw/4/16/2009