FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 8, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

A Report of Hearing Officer was issued on July 31, 2009.  The Commission considered such report at its regular meeting of September 9, 2009.  At that time, the Commission voted to remand the above-captioned matter to the hearing officer for further consideration. 

 

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 dated January 14, 2009, the complainant made a request to the respondents for the following:

 

“For the 4 CCT programs below, please tell me how much of their total budgets go to each of these forms of art, culture, and tourism:  a) music; b) theater; c) painting; d) sculpture; e) writing; f) historic preservation; g) museums; h) zoos and aquariums; [and] i) other tourist destinations.

 

1)      16T04 Culture, Tourism, Arts Grant: $4,000,000

2)      17068 Basic Cultural Resources Grant: $2,400,000

3)      17067 Ct. Humanities Council: $2,500,000

4)      17072 New Haven Festival of Arts and Ideas: $1,000,000.”

 

3.      It is found that by e-mail dated January 14, 2009, the respondents informed  the complainant: that his request had been received; that he should direct his request regarding the accounts for the Connecticut Humanities Council and New Haven Festival of Arts and Ideas directly to those agencies; and that the balance of his request was unclear and requested that he clarify it.

 

4.      It is found that by e-mail dated January 14, 2009 the complainant clarified his request as follows:

 

“For the town CCT programs below, for the two time periods July 1, 2007 to June 30, 2008 and July 1, 2008 to June 30, 2009, please tell me how much of their total budgets go to each of these forms of art, culture and tourism:  a) music; b) theater; c) painting; d) sculpture; e) writing; f) historic preservation; g) museums; h) zoos and aquariums; [and] i) other tourist destinations.  The Town programs for which I want this information are: 16T04 Culture, Tourism, Arts Grant: $4,000,000 [and]

17068 Basic Cultural Resources Grant: $2,400,000.”

 

5.      It is found that by e-mail dated January 21, 2009, the respondents informed the complainant that he had asked for information that they do not have and are not required to research or create.

 

6.      By e-mail dated and filed on January 23, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request.

 

7.      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. 

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

9.      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.”

 

10.   It is found that the requested records, to the extent that they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

11.   It is found that the respondents do not maintain grant information by art form and in order to provide the complainant with a record responsive to his request, the respondents would have to create such record by searching through the final reports of several hundred grantees, culling through such records for the information sought and then creating a new record that contains that information in the manner the complainant requested. 

 

12.   It is also found that the FOI Act does not require a public agency to create records.

 

13.   It is also found however that the respondents maintain some records from which the complainant may glean some of the information he requested.

 

14.   At the hearing on this matter, the respondent executive director testified that while she believed she knew which records would have been responsive to the complainant’s request, she was not going to frame the request for him or tell him what he should be requesting but rather requested instead that he clarify his request. 

 

15.   As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It is found that it was unreasonable to deny the complainant access to the responsive records simply because of arguable imperfections in the form in which his request for the records was couched.

 

16.   It is found, therefore, that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with the records responsive to his request.

 

17.   It is found that, at the hearing in this matter, the respondents offered to provide the complainant with a copy of the records described in paragraph 13, above, on the condition that he withdraw his complaint.

 

18.   Notwithstanding that the complainant stated at the hearing that he wanted to inspect the records maintained by the respondents, the complainant agreed to the condition described in paragraph 17, above.

 

19.   It is found, however, that after receiving a copy of the records described in paragraph 13, above, the complainant indicated that he was not satisfied with those records and did not withdraw his complaint.

 

 

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

 

2.      The respondents shall forthwith set a date and time during regular office or business hours of the respondent Commission for the complainant to inspect any and all records from which the complainant may glean the information described in paragraphs 2 and 4 of the findings above.  Such date and time shall be within thirty days from the issuance of the final decision in this matter. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 2010.

 

 

___________________________

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:

 

Richard Duffee

341 Oaklawn Avenue, Apt. 2

Stamford, CT 06905

 

Executive Director, State of

Connecticut, Connecticut

Commission on Culture and

Tourism; and State of Connecticut,

Connecticut Commission on 

Culture and Tourism

c/o Jane D. Comerford, Esq.

Assistant Attorney General

55 Elm Street, 5^th Floor

Hartford, CT 06106

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-049FD/paj/1/14/2010