FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 15, 2009, 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.      By e-mail dated November 17, 2008 (hereinafter “the November 2008 request”), the complainant made a request to the respondents for access to inspect certain records over a three year period starting from 2005.

 

3.      By e-mail dated and filed on December 9, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his November 2008 request.

 

4.      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. 

 

5.      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 . . .

 

6.      It is concluded that the requested records are public records within the meaning of §§1-200(5), and 1-210(a), G.S.

 

7.      It is also found that the respondents maintain records that are responsive to the complainant’s request.

 

8.      It is found that by e-mail dated November 25, 2007 (hereinafter “the November 2007 request”), the complainant made a request to the respondent for access to inspect certain records.

 

9.      It is found that his November 2007 request encompassed the records he asked to inspect in his November 2008 request. 

 

10.  It is found that the complainant filed an appeal with this Commission alleging that the respondents had violated the FOI Act for failing to comply with his November 2007 request which was docketed as FIC 2008-004; Pat DeAngelis v. Chief, Fire Department, Town of Middlebury; and Fire Department, Town of Middlebury (hereinafter FIC 2008-004).

 

11.   It is found that pursuant to the November 2007 request, the respondents compiled the responsive records, which filled eight file boxes, and arranged for the complainant to inspect such records on three dates: October 15, and November 7 and 11, 2008. 

 

12.  It is found that the complainant appeared at the respondent department’s offices on two of the three arranged dates and inspected records in five of the eight boxes for a total of two and a half hours. 

 

13.   It is found that, through his counsel, the complainant withdrew the appeal described in paragraph 10, above, shortly after he inspected the records and made his November 2008 request, which is described in paragraph 2, above.

 

14.   It is found that after receiving the complainant’s November 2008 request, by letter dated December 1, 2008, the respondents inquired of the complainant as to the nature and scope of the November 2008 request in light of the efforts made to comply with his November 2007 request for essentially the same records.

 

15.   It is found that the complainant did not respond to the respondents’ December 1, 2008 letter.

 

16.   At the hearing on this matter, and in their brief, the respondents contended that they are in full compliance with the law and have complied with the complainant’s request having given him multiple opportunities to inspect the requested records, of which opportunities, they contend, he did not take full advantage.  The respondents also contend that after receiving his November 10, 2008 letter of withdrawal in FIC 2008-004 which indicated that the “inspection [as described in paragraph 12, above] satisfied his request,” the complainant’s subsequent request for essentially the same records reasonably suggests that his appeal in this matter is nothing more than an attempt to harass the respondents. 

 

17.   At the hearing on this matter, and in their brief, the respondents moved to have this matter dismissed and requested the imposition of a civil penalty against the complainant.

 

18.   With respect to the respondents’ claim of harassment, §1-206(b), G.S., provides in relevant part that:

 

(2)  If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars. . . .

 

(3)  In making the findings and determination under subdivision (2) of this subsection the commission shall consider the nature of any injustice or abuse of administrative process, including but not limited to:  (A) The nature, content, language or subject matter of the request or the appeal; (B) the nature, content, language or subject matter of prior or contemporaneous requests or appeals by the person making the request or taking the appeal; and (C) the nature, content, language or subject matter of other verbal and written communications to any agency or any official of any agency from the person making the request or taking the appeal.

 

19.   At the hearing on this matter, the complainant explained that he only withdrew his appeal in FIC 2008-004 to submit a more narrow records request when learning how many records were generated from his November 2007 request.  The complainant also explained at the hearing that the language in the November 10, 2008 letter of withdrawal was his attorney’s and that he was not “satisfied” but rather wanted to end the proceedings that resulted from his broader November 2007 request to start again with a new and narrower request.

 

20.   It is found that, while the relationship between the respondents and the complainant appears to be strained, the complainant’s explanation for making his November 2008 request is reasonable and credible. 

 

21.   It is also found that there is nothing in the FOI Act that precludes multiple requests for the same records by the same person.

 

22.   It is further found that there is nothing in the nature, content, language or subject matter of the complainant’s November 2008 request or his appeal to the Commission to suggest that the complainant is harassing the respondents.

 

23.   Therefore, it is further found that the respondents failed to prove that the complainant’s appeal to this Commission was taken frivolously, without reasonable grounds and solely for the purpose of harassing the respondents, within the meaning of §1-206(b)(2), G.S.

 

24.   However, it is also found that, in light of the events described in paragraphs 8 through 13, above, the respondents’ inquiry, described in paragraph 14, above, was reasonable.

 

25.   It is further found that without a response from the complainant and any other further communication from him to facilitate compliance with his November 2008 request for inspection (i.e. when he would be available to inspect the records), the respondents did not violate the FOI Act by taking no action until the complainant replied to their December 1, 2008 letter.

 

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

 

1.      The complaint is hereby dismissed without prejudice.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 26, 2009.

 

 

____________________________

Petrea A. Jones

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:

 

Pat DeAngelis

PO Box 191

Marion, CT 06444

 

Treasurer, Fire Department, Town

of Middlebury; and Fire Department,

Town of Middlebury

c/o Mary Alice Moore Leonhardt, Esq.

Moore Leonhardt & Associates LLC

67 Russ Street

Hartford, CT 06106

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2008-805FD/paj/8/28/2009