FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on July 20, 2009, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The matter was consolidated for hearing with docket #FIC 2009-182, Steven Edelman v. Jean De Smet, First Selectman, Town of Windham; docket #FIC 2009-184, Steven Edelman v. Donald Schultz, Building Official, Town of Windham; docket #FIC 2009-185, Steven Edelman v. Donald Schultz, Building Official, Town of Windham; docket #FIC 2009-186, Steven Edelman v. Donald Schultz, Building Official, Town of Windham; and docket #FIC 2009-187, Steven Edelman v. Donald Schultz, Building Official, Town of Windham. 

 

            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 of complaint filed April 2, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request to inspect public records, and requesting the imposition of a civil penalty against the respondent.    

 

            3.  It is found that on many occasions, beginning at least as early as April 29, 1994 and continuing to the present, the complainant has requested access to or copies of records from the Town of Windham and its various officials, especially the town building department, concerning the complainant and certain alleged building code violations, and disputes arising out of that building code issue, including alleged criminal activity that was referred to the Windham State’s Attorney’s Office.

 

4.  It is found that, by letter dated March 10, 2009, the complainant asked that the respondent permit him to inspect “every affidavit mentioning or referencing Steven Edelman to which a Windham Building Official or Windham Assistant Building Official has attested.”

 

5.  It is found that the respondent replied by letter dated March 16, 2009, indicating that his office did not maintain affidavits on file.

 

6.  It is found that, by letter dated March 18, 2009, the complainant extended his March 10, 2009 request to “records kept in the custody of Windham legal counsel or any other off-site facility.”

 

7.  It is found that, by letter dated March 23, 2009, the respondent again replied that his office had “no affidavits or copies of same as they relate to Steven Edelman.”

 

8.  It is found that the complainant did not direct any request directly to Windham legal counsel. 

 

9.  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.

 

            10.  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. 

 

11.  It is found, based upon the credible testimony of the respondent, that he has personal knowledge of the types of records received, sent and maintained by his office, and has no knowledge of any records responsive to the complainant’s request that are maintained in his office.

 

            12.  It is also found that the respondent does not have custody or control over records of Windham’s legal counsel.

 

13.  It is found that the respondent does not have the records requested by the complainant.

 

14.  It is therefore concluded that the respondent did not violate §1-210(a), G.S.

 

            15. In his post-hearing brief, the respondent requested that the Commission find that the complaint in this matter is without reasonable grounds and brought solely for the purpose of harassing the respondent.

 

            16.  Section 1-206(b)(2), G.S., provides in relevant part:

 

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. …

 

            17.  However, the respondent has not requested that a civil penalty be imposed against the complainant, or alleged that the complaint was brought frivolously, a necessary element to imposing a civil penalty under §1-206(b)(2), G.S.

 

18.  The Commission in its discretion therefore declines to address the request described in paragraph 15, 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 dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 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:

 

Steven Edelman

Route Fourteen

Windham Center, CT 06280

 

Donald Schultz, Building Official,

Town of Windham

C/o Richard S. Cody, Esq.

34 Church Street

P.O. Box 425

Mystic, CT 06355

 

and

 

C/o Russell N. Jarem, Esq.

Gordon, Muir & Foley, LLP

Ten Columbus Blvd.

Hartford, CT 06106

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-183FD/sw/3/25/2010