FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 21, 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 matter was consolidated with Docket #FIC 2008-664; Kimberly Graham v. Superintendent of Schools, Norwalk Public Schools; and Norwalk Public Schools.

 

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 e-mail correspondence dated August 13, 2008, the complainant sent a request for records to the respondents, in which she sought a copy of any credentials that Stacy Lore provided to the respondents.  It is further found that, by e-mail correspondence dated August 19, 2008, the complainant reiterated her request and expressed that she was very anxious to receive copies of these records.

 

3.  It is found that, by e-mail correspondence dated August 21, 2008, the respondents acknowledged the complainant’s request for records.  It is further found that at this time the respondents assured the complainant that the copies she requested would “be forwarded to her attention.” 

 

4.  It is found that, by e-mail correspondence dated August 28, 2008, the complainant informed the respondents that she still had not received copies of any of the records she requested.

 

5.  It is found that, by e-mail correspondence dated August 29, 2008, the respondents acknowledged the complainant’s request, and informed the complainant that her request would be acted upon.

 

6.  It is found that, by e-mail correspondence dated September 2, 2008, the respondents again acknowledged the complainant’s request for records, stating that they had “just received” the request. 

 

7.  It is found that, by e-mail correspondence dated September 4, 2008, the complainant expanded her request for records, stating that at this time she wanted copies of the following:    

 

a.       Credentials provided to Norwalk Public School (“NPS”) by Stacy Lore and how they were verified by NPS;

b.      The procedure that NPS follows to check an independent contractor’s credentials;

c.       All billing records from Stacy Lore regarding my son, Henry Bustell; and

d.      The total amount billed to NPS from Spectrum Kids (with no specific children) in 2007 and YTD 2008.

 

8.  It is found that, by e-mail correspondence dated September 17, 2008, the complainant corresponded with the respondents, informing them that she still had not received any records in response to either her August 13, 2008 request or her September 4, 2008 request. 

 

9.  It is found that, by e-mail correspondence dated September 18, 2008, the respondents represented to the complainant that it was their understanding that the records that she requested “had been forwarded” to her attention.  Despite this representation, it is found that the respondents actually forwarded only Spectrum Kids’ billing records with regard to the complainant’s son to the complainant under cover letter dated September 18, 2008.  It is further found that, by e-mail correspondence dated September 18, 2008, the respondents requested that the complainant “indicate” again for them which records she was requesting, and which records she had yet to receive.  It is found that, by e-mail dated September 18, 2008, the complainant reiterated her September 4, 2008 request, described in paragraph 7, above, and stated that, to date, she had not received copies of any records from the respondents. 

 

10.  It is found that the respondents sent an additional e-mail to the complainant on September 18, 2008, stating that the complainant’s September 4, 2008 request for records would be “acted upon.” 

 

11.  By letter dated October 11, 2008 and filed October 16, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with her request for records.

 

12.  Section 1-200(5), G.S., provides:

 

“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.

 

13.  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 . . .  (3) receive a copy of such records in accordance with section 1-212.

 

14.  Section 1-212(a)(1), 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.

            15.  It is found that, to the extent that the respondents maintain the records described in paragraph 7, above, which request incorporates the request described in paragraph 2, above, such records are “public records” and must be disclosed promptly in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

16.  At the hearing in this case, the complainant testified that Spectrum Kids worked with the respondent school to provide educational services to her son.  She further testified that Stacy Lore was an individual from Spectrum Kids who was assigned to work directly with her son. 

 

17.  With regard to the request referenced in paragraph 7.c., above, it is found that, on September 18, 2008, the complainant received Spectrum Kids’ billing records with regard to her son.

 

18.  With regard to the request referenced in paragraph 7.a, above, it is found that, by letter dated December 3, 2008, the respondents informed the complainant that they did not have any records in their possession with regard to Stacy Lore’s credentials. 

 

19.  With regard to the request referenced in paragraph 7.d, above, it is found that, on December 3, 2008, the respondents granted the complainant access to the records in its possession concerning Spectrum Kids’ billing records for individuals other than her son. 

 

20.  The complainant contends that she has yet to receive copies of records related to the procedures that the respondents followed to verify Stacy Lore’s credentials, which request is referenced in paragraph 7.a., above, or any such procedures followed to verify  other independent contactor’s credentials, which request is referred to in paragraph 7.b, above. 

 

21.  The respondents contend that, as written, the complainant’s request referenced in paragraph 7.b., above, is a request for information and not a request for records. 

 

22.  After reviewing the parties’ correspondence, including correspondence submitted by the complainant evidencing the multiple times that she expressed that she had not received the “items” that she had requested in her August 13, 2008 and September 4, 2008 requests, it is found that the complainant’s request in paragraph 7.b., above, is fairly construed as a request for records that evidence the billing procedures used by the respondents to verify the credentials of their independent contractors. 

 

23.  Based on the testimony, however, it is found that the respondents do not have any records in their possession that are responsive to the complainant’s request with regard to records evidencing the procedures used to verify the credentials of either Stacy Lore or other independent contractors, which requests are referenced respectively in paragraphs 7.a and 7.b, above. 

 

24.  As to the cause for the lapse of time between the complainant’s requests for records and the provision of those records to the complainant, the respondents testified that the delay was due to the respondents trying to locate and assemble the requested records, and that vacations somehow interrupted the process.  

 

25.  It is found that the respondents did not provide a sufficient explanation for the delay between the complainant’s requests for records dated August 13, 2008 and September 4, 2008 and the provision of records to the complainant on September 18, 2008 and December 3, 2008. 

 

26.  Accordingly, it is concluded that the respondents violated the promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

27.  At the hearing, the complainant contended that a civil penalty was warranted in this case because of the length of time it took for her to receive the records she requested and because of the respondents’ failure to promptly ascertain which records it had in its possession and which records it did not.  This contention was not raised in the complaint. 

 

28.  While it is concluded that the respondents should have been more prompt in providing the records to the complainant, it is concluded that there is an insufficient factual basis in this case upon which to impose a civil penalty against the respondents. 

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

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May l3, 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:

 

Margaret Bustell  

7 Highbrook Road

Norwalk, CT 06851

 

Superintendent of Schools, Norwalk

Public Schools; and

Norwalk Public Schools

C/o Jason Stanevich, Esq.

and Marsha Moses, Esq.

Berchem, Moses & Devlin, PC

75 Broad Street

Milford, CT 06460

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-677FD/sw/5/19/2009