FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 18, 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, the above-captioned matter was consolidated with Docket #FIC 2009-444, Wesley S. Lubee, Jr. v. Housing Authority, Town of Wallingford.

 

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.      By letter dated March 9, 2009 and filed on March 10, 2009, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       adopting a policy at its February 26, 2009 meeting “that all visitations to review or scan public records must be by appointment at the discretion of the Authority and are to be limited to 30 minutes per visit;”

 

b.      adopting a “$.50 per page fee for scanning with no monetary limitation;”

 

c.       having by-laws which provide in part that “if all commissioners of the Authority are present at a special meeting, any and all business may be transacted at such special meeting;”

 

d.      having by-laws that “require regular meetings to be convened without notices containing a proposed agenda;”

 

e.       having by-laws that permit the respondent’s December meeting to be held without notice;

 

f.       grudgingly acquiescing to the complainant’s request for notice by mail of each regular or special meeting;

 

g.      permitting a Linda L. Daley, to attend the executive session convened during the respondent’s January 22, 2009 meeting;

 

h.      and charging fifty cents per page for copies of public records instead of twenty-five cents per page.

 

3.      With respect to the allegations described in paragraph 2a, above, §1-210(a), G.S., provides that:

 

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.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

4.      In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that §1-210(a), G.S.,

 

does not explicitly empower an agency to require that a person make an appointment to inspect public records.  Nor does the language of the statute imply the power to impose such a precondition.  Obviously, as custodian of its public records, an agency has the right to take necessary steps to protect them from destruction or mutilation.  And these steps may properly include supervision of the documents while they are being inspected pursuant to Conn. Gen. Stat. §1‑19(a). 

5.      The advisory opinion goes on to state that:

 

What is clear is that public records must be kept accessible and must be made available to a requesting person “promptly during regular office or business hours;”

 

and

 

that if an agency politely explains to a person seeking access to records why immediate compliance is not possible, that person will most likely understand and appreciate the agency's obligation to balance its duties as custodian of public records with its other duties.

 

6.      The advisory opinion concluded that “in the final analysis, it is the Commission's opinion that this rule of reason and courtesy, if implemented, should eliminate the vast majority of potential conflicts between a citizen's right to timely access to public records, and an agency's duty to comply while processing other important business.”

 

7.      It is found that the respondent did not adopt a policy, at its February 26, 2009 meeting, or at any other meeting, that requires all visitations to inspect and scan public records to be by appointment at the discretion of the Authority or that limits each visit to 30 minutes.

 

8.      It is found that the respondent only asks that requests to scan records be by appointment and that they have never required a person to leave if the time for scanning goes over 30 minutes.

 

9.      It is concluded, therefore, that the respondent did not violate the FOI Act as alleged in paragraph 2a, above.

 

10.   With respect to the allegation described in paragraph 2b, above, §1-212(g), G.S., provides in relevant part that:

 

Any individual may copy a public record through the use of a hand-held scanner.  A public agency may establish a fee structure not to exceed ten dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner.

 

11.   It is found that the respondent adopted a fee structure of fifty cents per page for scanned records at its February 26, 2009 meeting.

 

12.   It is found that the respondent’s fee structure does not exceed ten dollars until after the twentieth page. 

 

13.   It is found that there is no evidence in the record that the respondent has charged an individual more than ten dollars for copies of scanned records in excess of twenty pages made during a single scanning session.  

 

14.   Consequently, it is concluded that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2b, above. 

 

15.   With respect to the by-laws referred to in paragraphs 2c through 2e, above, it is found that they are dated April 1985 and have not governed the respondent’s proceedings in over a decade.

 

16.   Consequently, it is concluded that the respondent did not violate the FOI Act as alleged by the complainant in paragraphs 2c through 2e, above. 

 

17.   With respect to the complainant’s allegation described in paragraph 2f, above, it is found that §1-227, G.S., provides in relevant part that:

 

The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. 

 

18.   It is found that the respondent has complied with §1-227, G.S., by giving the complainant notice by mail of each regular meeting and of any special meeting which is called, pursuant to that provision.

 

19.   Consequently, it is concluded that the respondent has not violated the provisions of §1-227, G.S.

 

20.   With respect to the complainant’s allegation described in paragraph 2g, above, §1-206(b)(1), G.S., provides, in relevant part, that:

 

A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. 

 

21.   It is found that the respondent’s January 22, 2009 meeting was not an unnoticed or secret meeting within the meaning of §1-206(b)(1), G.S., and, therefore, the appeal should have been filed thirty days after the date of that meeting.

 

22.   It is found that the appeal in this matter was deemed received by and filed with this Commission on March 10, 2009, which is more than thirty days from the date of the violation that allegedly occurred at the January 22, 2009 meeting. 

 

23.   Consequently, with respect to the allegation described in paragraph 2g, above, it is concluded that the appeal was not timely filed and that the Commission lacks jurisdiction with respect to such allegation.

 

24.   With respect to the complainant’s allegation described in paragraph 2h, above, §1-212(a), G.S., provides in relevant part that:

 

….The fee for any copy provided in accordance with the Freedom of Information Act:  

 

(1)  By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page; and

 

(2)  By all other public agencies, as defined in section 1-200, shall not exceed fifty cents per page.  If any copy provided in accordance with said Freedom of Information Act requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency….

 

 

25.   Section 8-40, G.S., is the enabling legislation for the creation of housing authorities in municipalities and it provides in relevant part as follows:

 

In each municipality of the state there is created a public body corporate and politic to be known as the “housing authority” of the municipality; provided such authority shall not transact any business or exercise its powers hereunder until the governing body of the municipality by resolution declares that there is a need for a housing authority in the municipality….(emphasis added)

 

26.   It is found that the respondent is not an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, or a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official state agency, within the meaning of §1-212(a)(1), G.S.

 

27.   Consequently, it is found that the respondent falls within the category of “all other public agencies” within the meaning of §1-212(a)(2), G.S., and therefore, it is found that the respondent is permitted to charge up to fifty cents per page for copies of its public records.

 

28.   It is concluded, therefore, that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2h, above.

 

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.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 2010.

 

____________________________

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:

 

Wesley S. Lubee, Jr.

15 Montowese Trail

Wallingford, CT 06492

 

Board of Commissioners,

Housing Authority, Town of

Wallingford

C/o E. James Loughlin, Esq.

Loughlin Fitzgerald, P.C.

150 South Main Street

Wallingford, CT 06492

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-129FD/sw/2/26/2010