FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 16, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint.  After the hearing, three pages of records (described in paragraph 7 of the findings below) claimed to be exempt from disclosure were submitted to the Commission for in camera inspection.

 

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.  The Commission takes administrative notice of the fact that Academy of Driving, then the largest commercial school in the state providing driver education, was investigated by both the Department of Motor Vehicles and the respondents for fraudulent practices up to and including 2008.  The owners and operators were arrested by the state on felony charges in 2008, and Academy of Driving was ordered closed by the state in January 2009, based upon the owner’s admission to violation of hundreds of administrative charges. 

 

3.  It is found that the complainant, by letter dated December 4, 2008 hand-delivered to the Governor’s office, asked the respondent Commissioner for information concerning what the complainant believed to be a lack of State Police investigation of DMV personnel who may have been aware of, but did not report, violations of law by Academy of Driving.

 

4.  It is found that the respondent Commissioner replied by letter dated February 26, 2009 that, “While there were allegations of potential involvement and wrongdoing by officials from the DMV, the investigators from the Motor Vehicle Fraud Task Force have been unable to develop any information to substantiate such a claim.” 

 

5.  It is found that, by letter dated April 28, 2009, the complainant made a request to the respondent Commissioner for “any and all documents and e-mails that were part of your thorough review conducted after my letters to your Department .…”

 

6.  It is found that the respondents on or about July 30, 2009 provided certain records to the complainant, which consisted of emails that he had sent and acknowledgments of those emails by the respondents.

 

7.  The respondents withheld from the complainant three pages of records, consisting of two copies of a single draft letter from the respondent Commissioner to the complainant, and a copy of an email dated March 12, 2009 from the Connecticut State Police Motor Vehicle Fraud Task Force.

 

8.  By letter of complaint filed August 6, 2009, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to fully comply with his request for records.  The complainant subsequently amended his complaint, before the hearing on this matter, to request the imposition of a civil penalty against the respondent Commissioner.

 

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

 

11.  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.”

 

12.  It is found that the records described in paragraph 7, above, are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

13.  The respondents maintain that the draft letter is exempt from disclosure pursuant to §1-200(b)(1), G.S., which provides that disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure ….”

14.  However, the respondents offered no evidence to prove that they had determined that the public interest in withholding the draft letter clearly outweighed the public interest in disclosure.

 

15.  It is therefore concluded that the respondents failed to meet their burden of proving that the draft letter is exempt from disclosure pursuant to §1-210(b)(1), G.S., and thus violated the FOI Act by withholding the letter.

 

16.  The respondents contend that the March 12, 2009 email is exempt from disclosure pursuant to §§1-200(b)(13) and 4-61dd, G.S.

 

            17.  Section 1-210(b)(13), G.S., provides “[n]othing in the Freedom of Information Act shall be construed to require disclosure of…[r]ecords of an investigation or the name of an employee providing information under the provisions of section 4-61dd.”

 

18.  Section 4-61dd(a), G.S., provides, in relevant part:

 

Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency, as defined in section 1-120, or any person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract, may transmit all facts and information in his possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as he deems proper regarding such report and any other information that may be reasonably derived from such report....The Attorney General shall have power to summon witnesses, require the production of any necessary books, papers or other documents and administer oaths to witnesses, where necessary, for the purpose of investigation pursuant to this section.  Upon the conclusion of the investigation, the Attorney General shall where necessary, report any findings to the Governor, or in matters involving criminal activity, to the Chief State's Attorney.  In addition to the exempt records provision of section 1-210, the Auditors of Public Accounts and the Attorney General shall not, after receipt of any information from a person under the provisions of this section, disclose the identity of such person without such person’s consent unless the Auditors of Public Accounts or the Attorney General determines that such disclosure is unavoidable, and may withhold records of such investigation, during the pendency of the investigation (emphasis added).

 

            19.  It is found that the respondents offered no evidence to prove that any person having knowledge of corruption transmitted facts and information in his possession to the Auditors of Public Accounts, as described in §4-61dd, G.S.; nor that the Auditors of Public Accounts reviewed the matter and reported their findings and recommendations to the Attorney General, as also described in §4-61dd, G.S.;  nor that the Attorney General consulted with the Auditors of Public Accounts or conducted an investigation with the concurrence of and assistance of the Auditors of Public Accounts, also as required in §4-61dd, G.S.  Although the March 12, 2009 email indicates that a meeting was held at the Attorney General’s “Whistleblower Unit,” that fact alone, even if true hearsay, does not establish that existence of ongoing whistleblower investigation.

 

20.  It is therefore found that the March 12, 2009 email is not a record of a whistleblower investigation within the meaning of §4-61dd, G.S.

 

            21.  Moreover, it is also found that the respondents offered no evidence to prove that any investigation of any kind was pending at the time of the complainant’s request.  Indeed, it is found by reasonable inference from the facts on the record, including the final draft of the respondent Commissioner’s February 26, 2009 letter to the complainant stating that the claims of involvement by DMV employees were not substantiated, and also including the March 12, 2009 email itself, that any whistleblower investigation into the matter of alleged wrongdoing by DMV employees was no longer being pursued, and that the investigation was not therefore “pending.”

 

            22.  It is therefore concluded that the respondents violated §§1-210(a), G.S., by withholding the March 12, 2009 email from the complainant.

 

23.  The Commission understands that the complainant’s underlying claim is that the respondents did not conduct a thorough investigation, and that the paucity of records given to him supports such a claim.  However, that claim is clearly beyond the purview of this Commission, and no inferences are to be drawn from this decision concerning the thoroughness of any investigation conducted by the respondents.

 

24.  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.

 

25.  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). 

 

26.  The respondent Department offered no evidence to prove that it acted reasonably in withholding the requested records from the complainant.

 

27.  However, it is also found that there was also no evidence to prove that the respondent Commissioner was the official directly responsible for the denial of the complainant’s rights under the FOI Act.

 

28.  Therefore, it is concluded that no civil penalty against the named respondent Commissioner is appropriate in this case.

 

 

 

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

1. The respondents shall forthwith provide the complainant with a copy of the records described in paragraph 7 of the findings, above, free of charge.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 9, 2010.

 

 

 

____________________________

Cynthia A. Cannata

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:

 

James Ricci

17 Fritz Place

Wallingford, CT  06492

 

John A. Danaher, III, Commissioner, State of Connecticut,

Department of Public Safety; and State of Connecticut,

Department of Public Safety

c/o Terrence M. O’Neill, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-451/FD/cac/6/16/2010