FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

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The above-captioned matter was heard as a contested case on July 27, 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 letter of complaint filed April 14, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request to review public records.  The complainant requested the imposition of the maximum civil penalty against the individual respondents, Steven J. Adamowski, Jill Cutler-Hodgman, and Milly Ramos-Agosto.

 

3.  It is found that the complainant, by email dated March, 11, 2009 to the respondent Jill Cutler-Hodgman, interim co-director of human resources for the Hartford Board of Education, requested the following documents “for review:”

 

      Employment records/personnel records for Dr. Steven Adamowski to include any employment contracts and or employment agreements, including but not limited to any original contracts/agreements and or supplemental agreements covering transportation and use of a city vehicle, housing and or agreements regarding any living expenses covered by the City of Hartford and or the Hartford Board of Education. 

 

      Also, please include any documentation regarding use of any City credit cards and/or expense reports or requests for reimbursement for purchases submitted to the City of Hartford and/or the Hartford Board of Education.

 

4.  It is found that the respondent Milly Ramos-Agosto, an employee in the Labor Relations Department, responded on behalf of Ms. Cutler-Hodgman on the next day, March 12, 2009, acknowledging the complainant’s request, and setting forth the statutory copying fees.

 

5.  It is found that the complainant, by reply email on the same day, pointed out that his request had not been for copies, but to review the requested records.

 

6.  It is found that the complainant, having not received any response by March 20, called Ms. Ramos-Agosto and asked when he would be given access to the requested records.

 

7.  It is found that Ms. Ramos-Agosto then on that day, March 20, 2009, faxed a copy of the current superintendent’s contract to the complainant, consisting of five pages, together with a single page, summarizing in a single line, the total purchases and credits on Superintendent Adamowski’s credit card.  The complainant was not charged for the copies.

 

8.  It is found that Ms. Ramos-Agosto obtained the records she faxed by going to Ms. Cutler-Hodgman and showing her the complainant’s request, and going to the Finance Department, and doing the same.  The records she was given were the records she faxed to the complainant.

 

9.  It is found that the complainant immediately called Ms. Ramos-Agosto and complained about the small number of records provided in response to his broad request.  In particular, he told Ms. Ramos-Agosto he wanted not just the single line summary of the purchases and credits on the Superintendent’s credit card, which was the last page of the report for that card, but the pages of itemization of purchases and credits that appear on the pages that precede the summary.  Additionally, he wanted any records that would show whether the City or the Board of Education was paying for the Superintendent’s apartment.

 

10.  It is found that Ms. Ramos-Agosto, believing she lacked the authority to provide additional records on her own, went to Ms. Cutler-Hodgman and asked what to do.  Ms. Cutler-Hodgman told Ms. Ramos-Agosto that it was Ms. Cutler-Hodgman’s position that the respondents had complied with the complainant’s request. 

 

11.  It is found that the complainant, by email dated April 13, 2009, reiterated his request to all three individually-named respondents, indicating his belief that they had not complied with his request.

 

12.  It is found that Ms. Ramos-Agosto responded by email on that same day, saying that “We responded to your request via fax on March 20, 2009.”

 

13.  It is found that the complainant, in turn, again on the same day replied:

 

I might suggest that you read the request again.  You responded with one document, there were several items requested.  There was also some sort of spread sheet showing credit card use.  That is not what I asked for….

 

14.  It is found that the complainant then filed his complaint.

 

15.  It is found that, in response to the complaint filed, counsel for the respondents wrote the complainant on July 1, 2009 that the respondents had complied with his request.  Counsel additionally stated:

 

      If you are claiming that the Hartford Board of Education failed to provide any requested documents, please indicate specifically which documents you believe were covered by your request but not provided so that we may properly respond to your requests.

 

16.  It is found that counsel for the respondents, by letter dated July 20, 2009, reiterated her request that the complainant specify which documents were not provided.

 

17.  It is found that the complainant, by letter dated July 21, 2009 to counsel for the respondents, reiterated his original March 11, 2009 request, and also specified three categories of records not provided: (1) information regarding the Superintendent’s housing and living expenses paid by the City of Hartford or the Board of Education; (2) the detailed credit card expenses incurred by the Superintendent over the past two years, as required under “P card use guidelines;” and (3) any supplemental agreements mentioned in the original employment agreement.

 

18.  It is found that the respondents, through counsel, then gathered several hundred pages of records and made them available for the complainant’s review on July 24, 2009.

 

19.  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.

 

20.  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. 

 

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

 

22.  The complainant maintains that his request on its face clearly asked for more than the five-page contract and the one-line credit card summary that he was provided on March 20; that the respondents’ initial response to his request was therefore manifestly insufficient; that the respondents refused to provide more records notwithstanding that they knew there were more records and that he had communicated his request for more than what he had received; that he specified at least some of the additional records that he wanted; and that he did not receive a meaningful response to his request until days before the hearing on this matter in late July.

 

23.  The respondents contend, to the contrary, that they promptly and sufficiently complied with the complainant’s request on March 20; that he failed to clarify his request beyond directing the respondents’ attention to the language of his written request; that he failed to respond to counsel’s request for clarification on July 1; that he refused to specify what he wanted until July 20; and that when he finally specified what he wanted, he sought records outside the scope of his original request.

 

24.  With respect to the respondents’ March 20 provision of six pages of records, it is found that, considering the small number of records provided, the lack of evidence that those documents were difficult to obtain by the respondents, and the respondents’ failure to provide those records until prompted by a telephone call from the complainant, that those records were not provided promptly within the meaning of §1-210(a), G.S.

 

25.  It is therefore concluded that the respondents violated §1-210(a), G.S., by failing to make the six pages of records available until seven business days after the complainant’s request.

 

26.  With respect to the respondents’ assertion that the complainant refused to clarify his request, it is found that, at a minimum, the complainant, immediately after he received the six pages of records on March 20, contacted the respondents and complained vociferously that he wanted the detail of the credit card use, and any records pertaining to payment by the Board of Education or the City of Hartford for the Superintendent’s apartment.

 

27.  With respect to the respondents’ assertion that it was insufficient for the complainant to direct their attention to the language of his request, it is found that his request is reasonably clear on its face, and that it was not unreasonable for the complainant to rely on it.

 

28.  With respect to the respondents’ assertion that the records specified by the complainant on July 21, as described in paragraph 17, above, were outside the scope of his original request, it is found to the contrary that the records so specified on July 21 were plainly within the scope of his original request.

 

29.  The respondents maintain that the hundreds of pages of records provided on July 24 were provided promptly, because they were provided within days of the complainant’s July 21 letter, and that they would have been provided even earlier had the complainant responded to respondents’ counsel’s July 1 letter.

 

30.  With respect to the respondents’ assertion that the complainant failed to respond promptly to respondents’ counsel’s July 1, 2009 request for clarification, it is found, based upon the representation of counsel for the respondents, that the July 1, 2009 letter was deposited in the mail.

 

31.  The respondents contend that, since the July 1 letter was deposited in the mail, it is deemed received by the complainant pursuant to the “mailbox rule.”

 

32.  The mailbox rule is the name for the prevailing tenet that a properly stamped and addressed letter that is placed into a mailbox or handed over to the United States Postal Service raises a rebuttable presumption that it will be received. 29 Am. Jur. 2d, Evidence § 262 (1994); see Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 747, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). 

 

33.  The respondents have met their burden of proving that the July 1 letter was placed into a mailbox or handed over to the United States Postal Service.

 

34.  Pursuant to the mailbox rule, the burden then shifts to the complainant to present evidence that rebuts this presumption.

 

35.  The complainant testified without contradiction that he never received the letter, which is why he didn’t respond.

 

36.  Further, it is found that the complainant immediately replied to the respondents’ March 12, 2009 email, immediately responded to the respondents’ March 20 fax of documents, immediately responded to respondents’ counsel’s subsequent July 20 letter, immediately responded to respondents’ counsel’s three emails on July 23 and 24, and immediately responded to respondents’ counsel’s offer to review the records days before the hearing on this matter.

 

37.  It is therefore found, by reasonable inference from the facts, that had the complainant received the July 1, 2009 letter, he would have immediately responded to it in the same manner as he responded to every other communication from the respondents and respondents’ counsel related to his request.

 

38.  It is found that the complainant met his burden of rebutting the presumption that the July 1 letter was received, that the complainant did not in fact receive the July 1 letter from respondent’s counsel, and that none of the delay between July 1 and July 20 is attributable to the complainant.

 

39.  Given that the respondents were able to produce hundreds of pages of responsive documents within a matter of days after July 20, and that those documents were provided in response to a letter that did not in fact ask for any new records beyond the complainant’s March 11 request, it is concluded that the respondents failed to promptly comply with the complainant’s March 11 request.

 

40.  With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial 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 the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

41.  The standard for when a violation is “without reasonable grounds” is analogous to the legal standard “without any substantial justification.”  Connecticut Department of Public Safety v. FOIC, et al., 1997 WL 537117 (Conn. Super.), affirmed, 247 Conn. 341 (1998).  Similarly, the phrase “without reasonable justification” has been construed to mean “entirely unreasonable or without any basis in law or fact.”  Id., quoting Bursinkas v. Department of Social Services, 240 Conn. 141, 155 (1997). 

 

42.  The respondents contend that their initial provision of six pages of records to the complainant was reasonable, that any delay was due to the complainant’s failure to specify what he wanted, and that the hundreds of pages of documents provided on July 24 were reasonably provided then because they were outside the scope of the March 11 request.

 

43.  It is found, however: that the complainant’s March 11 request was reasonably clear on its face, and that there were no reasonable grounds for the respondents to make the most minimal response possible on March 20; that the respondents were or should have been aware that there were hundreds of additional responsive pages, and that there were no reasonable grounds for delaying access to those records until late July; that the respondents specifically withheld the detailed credit card records explicitly requested by the complainant, and that there were no reasonable grounds for doing so; and that virtually all of the delay in providing the requested records was the responsibility of the respondents, and that it is not reasonable to blame that delay on the complainant.

 

44.  It is therefore found that the respondents’ violations of the FOI Act were without reasonable grounds within the meaning of §1-206(b)(2). 

 

45.  With respect to the requirement in §1-206(b)(2), G.S.,  that the “custodian or other official directly responsible for the denial has been given an opportunity to be heard” prior to the imposition of a civil penalty, three individuals, Steven J. Adamowski, Jill Cutler-Hodgman, and Milly Ramos-Agosto, were given an opportunity to be heard.

 

46.  There is no evidence that Superintendent Adamowski was directly involved in the denial of the complainant’s FOI rights.

 

47.  It is found that Ms. Ramos-Agosto acted solely at the direction of Jill Cutler-Hodgman, who she characterized as “her boss.”

 

48.  It is found that Ms. Ramos-Agosto communicated the request to Ms. Cutler-Hodgman, that Ms. Cutler-Hodgman limited the response to the request to six pages of records, and that Ms. Cutler-Hodgman refused to reconsider her position despite the complainant’s clear communication to Ms. Ramos-Agosto, who in turn communicated to Ms. Cutler-Hodgman.

 

49.  It is therefore found that Ms. Cutler-Hodgman is the custodian or other official directly responsible for the denial of the complainant’s FOI rights.

 

50.  The Commission believes that a civil penalty would have a deterrent effect.  The Commission is specifically concerned that, should Ms. Cutler-Hodgman and the other respondents believe that their actions to stonewall the provision of public records can be entirely cured by a last-minute offer of documents days before an FOI Commission hearing, and that no adverse consequences will flow from that action other than a directive to henceforth comply with the FOI Act, then the promptness requirement of §§1-210(a), G.S., will have been rendered nugatory.

 

 

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

 

            1.  The respondent Jill Cutler-Hodgman shall, within 45 days of the notice of final decision in this matter, remit a civil penalty in the amount of $100 to the Commission.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 14, 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:

 

Kevin Brookman  

120 Sigourney Street

Hartford, CT 06105

 

Steven J. Adamowski,

Superintendent of Schools,

Hartford Public Schools;

Jill Cutler-Hodgman,

Labor Relations Department,

Hartford Public Schools;

Milly Ramos-Agosto,

Labor Relations Department,

Hartford Public Schools; and

Hartford Public Schools

C/o Melinda B. Kaufmann, Esq.

Office of the Corporation Counsel

City of Hartford

550 Main Street

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-209FD/sw/10/15/2009