FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 23, 2009, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2008-776; Bradshaw Smith v. Donald S. Trinks, Mayor, Town of Windsor; and Docket #FIC 2009-027; Bradshaw Smith v. Donald S. Trinks, Mayor, Town of Windsor.  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.         It is found that on December 15, 2008, the complainant requested that the respondent provide him with copies of the following:

 

a.       Records indicating the forgiveness of a loan from the Savings Bank of Manchester (now New Alliance Bank) to the Town of Windsor for Celebrate Windsor, Inc.;

                       

b.      Records of “an award letter” from the “Connecticut Department of Environmental Protection for the development of a trail from East Barber St., south toward the Hartford city line;” and

 

c.       Records “used” in the evaluation of the town manager.

 

3.         By letter dated December 22, 2008 and filed December 26, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to respond to his request for copies of records.  The complainant requested the imposition of a civil penalty against the respondent.

 

4.      Section 1-210(a), G.S., provides in relevant part:

 

[e]xcept 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.

 

5.         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.”

 

6.         It is found that to the extent that the respondent maintains the records described in paragraph 2, above, such records are public records within the meaning of §1-210(a), G.S.

 

7.         With respect to the records described in paragraph 2.a, above, it is found that on January 10, 2009, the respondent provided copies of the records responsive to such request.

 

8.         At the hearing in this matter, the respondent conceded that he could have been more prompt in providing copies of the records to the complainant.  It is concluded that the respondent violated the promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

9.         With respect to the records described in paragraph 2.b, above, it is found that the respondent did not maintain any records responsive to the complainant’s request at the time of his request.  It is found, however, that on February 13, 2009, the Director of Recreation and Leisure Services for the Town of Windsor informed the complainant by letter, “While [the town] has not received an official award letter, an historical preservation survey was recently conducted by DEP.  Upon DEP receiving the results of the survey, the grant process will move forward.”

 

10.     It is found that on March 4, 2009, the Director of Recreation and Leisure Services for the Town of Windsor informed the complainant by letter that the DEP notified the town on March 3, 2009 that the Town of Windsor was awarded funding through the Recreational Trail Grants Program.  It is found that the Director enclosed a copy of such notification with his letter to the complainant.

 

11.     The complainant contends that the respondent violated the FOI Act by failing to inform him promptly that there were no responsive records at the time of his request, waiting instead until February 13, 2009 to tell him that the town did not have an official award letter.

 

12.     Section 1-206(a), G.S., provides in relevant part:

 

Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request.  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.

 

13.     Section 1-206(a), G.S., requires a public agency to provide a written response denying a request for public records, within the applicable number of days and permits a requester to invoke his right to file a complaint in the event an agency fails to comply with a request within the applicable number of days - without having to wait indefinitely for compliance that may never be forthcoming.  Nothing in §1-206(a), G.S., requires a public agency to provide a written response to a request for public records informing the requester that there are no responsive records.

 

14.     It is concluded that the respondent did not violate the FOI Act by not responding until February 13, 2009 to the complainant’s request described in paragraph 2.b, above. See Docket #FIC 2007-574; Bradshaw Smith v. Elizabeth E. Feser, Superintendent of Schools, Windsor Public Schools. 

 

15.     With respect to the records described in paragraph 2.c, above, it is found that on January 28, 2009, the town manager of Windsor informed the complainant by letter that the Town Council did not complete the evaluation of the town manager until January 19, 2009.  It is found that the town manager enclosed the completed evaluation with the letter sent to the complainant.

 

16.     The complainant contends that because he stated that he was requesting copies of all records “used” in the evaluation of the town manager, the respondent should not have waited until the evaluation was complete before providing him with the forms that were to be used, even if they were not yet filled out. 

 

17.     It is found, however, that the respondent reasonably assumed that the complainant sought copies of the completed evaluation of the town manager that was signed on January 20, 2009.

 

18.     It is found that the respondent promptly provided the copies of the records of the town manager’s evaluation.  Accordingly, it is concluded that the respondent did not violate the promptness provisions of the FOI Act with respect to the records described in paragraph 2.c, above.

 

19.     The FOI Commission declines to consider the imposition of a civil penalty in this matter.

 

No order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 10, 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:

 

Bradshaw Smith 

23 Ludlow Road

Windsor, CT 06095

 

Donald S. Trinks, Mayor

Town of Windsor

C/o Vincent W. Oswecki, Jr., Esq.

O’Malley, Denneen, Leary, Messina & Oswecki

20 Maple Avenue

P.O. Box 504

Windsor, CT 06095

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-797FD/sw/6/16/2009