FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Kevin Brookman, | |||
| Complainant | |||
| against | Docket #FIC 2008-455 | ||
|
Lee Erdmann, Chief Operating Officer, City of Hartford; and City of Hartford, |
|||
| Respondents | June 25, 2009 | ||
The above-captioned matter was heard as a contested case on November 10, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
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 the complainant made a request to the respondents dated May 21, 2008 (hereinafter “the May request”) for records related to the employment of Donald Lefevre, and that the respondents complied with such request. It is further found that one record which the complainant received as a result of the May request was an October 19, 2006, letter from the respondent chief operating officer to Tax Collector Donald Lefevre, informing him of allegations made against him, and placing Mr. Lefevre on administrative leave. It is further found that such letter sparked the complainant’s request as described in paragraph 3, below, which is the subject of the complaint in this matter.
3. It is found that, by e-mail dated June 20, 2008, the complainant requested that the respondents provide him with copies of all records regarding a number of allegations referenced in the October 19, 2006 letter, including any documentation of the allegations, as well as reports of investigations of the allegations, and notes made in the course of the investigation (hereinafter “the June request”).
4. It is found that, by e-mail dated June 23, 2008, the respondents acknowledged receipt of the request described in paragraph 3, above.
5. By letter dated July 8, 2008, and filed July 10, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request. The complainant requested the imposition of a civil penalty against the respondent chief operating officer.
6. Section 1-200(5), G. S., defines public records to mean:
… 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.
7. Section 1-210(a), G.S., provides in relevant part:
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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
8. Section 1-212(a), G. S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
9. It is found that the records described in paragraph 3, above, are public records within the meaning of §§1-200(5) and 1-210(a), G. S.
10. At the hearing in this matter, the respondents did not claim an exemption to disclosure for any of the requested records, and the complainant testified that this case does not concern promptness. Rather, the dispute between the parties concerns whether the respondents have provided the complainant with all requested records.
11. It is found that Mr. Lefevre filed a grievance challenging the action taken by the respondent city in placing him on administrative leave, as described in paragraph 2, above. It is further found that, in settlement of such grievance, the respondent city and Mr. Lefevre executed a general release and settlement agreement in August 2007, whereby Mr. Lefevre resigned his position and the city authorized certain payments to him.
12. It is found that, in August 2008, in further compliance with the May request, the respondents provided the complainant with thousands of records which are also responsive to the June request. At the hearing in this matter, the complainant acknowledged that he had not reviewed all of the records provided in response to the May request. It is found, however, that the complainant was not provided with an investigative report of the allegations described in paragraph 2, above, nor with any notes of investigators of such allegations. The respondents’ witness testified that, as far as he knew, all records had been provided to the complainant and he was unaware of the existence of any written investigative report or investigator’s notes. The complainant expressed incredulity that the city would enter into the settlement agreement described in paragraph 11, above, without documentation of an investigation into the allegations at issue.
13. It is found that the respondent chief operating officer conducted the investigation into the allegations described in paragraph 2, above. However, such respondent did not personally appear at the hearing in this matter to present testimony about the existence of a responsive investigative report or investigator’s notes.
14. It is found that the respondents failed to prove that they had conducted a diligent search for all responsive requested records in this matter, and therefore failed to prove that they have provided all requested records to the complainant.
15. It is concluded that the respondents violated the FOI Act in this matter.
16. The Commission notes that the respondents have provided the complainant with thousands of responsive records. The Commission declines to consider the imposition of 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. Forthwith, the respondents shall provide to the complainant a copy of the investigative report and investigator’s notes, as described in paragraphs 12 and 13 of the findings, above, free of charge.
2. In the event that no investigative report or investigator’s notes exist, the respondent chief operating officer shall so inform the complainant in an affidavit.
Approved by Order of the Freedom of Information Commission at its special meeting of June 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:
Lee Erdmann, Chief Operating
Officer, City of Hartford; and
City of Hartford
C/o J. Hanson Guest, Esq.
151 New Park Avenue
Hartford, CT 06106
____________________________
S. Wilson
Acting Clerk of the Commission
FIC/2008-455FD/sw/6/29/2009