FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 26, 2010, 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.      It is found that the respondents issued a RFP for renovations to the Fairfield Woods Middle School (hereinafter “the Fairfield Project”) to which the complainant, on behalf of Antinozzi Associates, responded by submitting a bid along with the required list of references.  

 

3.      It is found that it is the practice of the respondents to contact some or all of the references provided to gather information regarding a bidding company’s performance on similar projects.  It is found that each reference contacted is asked a series of questions ranging from whether the bidding company provided accurate construction documentation to whether they would hire the bidding company again.  It is found that the respondent director maintains handwritten notes of her conversations with each reference contacted, which notes include the name of the reference contacted. 

 

4.      It is found that at the conclusion of all of the reference checks, the respondents generate a document, referred to as the reference matrix, from the handwritten notes.  It is found that the reference matrix includes the answers and comments of each reference contacted.  It is found that the reference matrix does not include the name of the references.

 

5.      It is found that, after receiving a copy of the reference matrix related to the Fairfield Project, the complainant made a request, by e-mail dated September 8, 2009, to the respondents for a copy of the list that included the names of the references contacts.

 

6.      It is found that, by e-mail dated September 10, 2009, the respondents denied the complainant’s request and informed him that handwritten notes are exempt from disclosure pursuant to the Freedom of Information (“FOI”) Act and that the references contacted speak candidly on the condition that their identities are kept confidential.

 

7.      By letter dated and filed on October 2, 2009, the complainant appealed to this Commission alleging that the respondents violated the FOI Act by failing to comply with his September 8, 2009 request.

 

8.      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. 

 

9.      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 . . . receive a copy of such records in accordance with section 1-212. 

      

10.   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.”

 

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

 

12.   It is found that, about a year before the RFP for the Fairfield Project was issued, the respondent town issued a RFP for a project referred to as the Stratfield Project.

 

13.   It is found that Antinozzi Associates bid on the Stratfield Project also and that the complainant submitted the required list of references for that project.

 

14.   It is found that the comments on the matrix for the Fairfield Project were from references contacted for the Stratfield Project and not from the references provided to the respondents for the Fairfield Project.  It is found, however, that the complainant was unaware of this until the hearing on this matter.

 

15.   It is found that the names of the references contacted for the Stratfield Project are contained in the handwritten notes of the respondent director’s conversations with the references for that project and are the only records responsive to the complainant’s September 8, 2009 request.

 

16.   It is found that, after diligently searching all files in which the handwritten notes, described in paragraph 15, above, may reasonably be found, which included the file cabinet in which the notes were customarily maintained, the other project files the respondent director was working on at the time she was working on the Fairfield Project, and her home, the respondents cannot find the file pertaining to the Stratfield Project which file included the handwritten notes.

 

17.   It is found that not only can the handwritten notes not be found, the respondent director cannot recall which references she contacted for Antinozzi Associates even after reviewing the list of references that was provided by the complainant for the Stratfield Project.

 

18.   At the hearing on this matter, the respondents contended that even if this Commission determined that the handwritten notes are not exempt from disclosure pursuant to §1-210(b)(1), G.S., they no longer maintain the records and cannot produce what they do not have.  The respondents requested that the complaint be dismissed.

 

19.   It is found that, at the time of the respondents’ September 10, 2009 response to the complainant, the respondents assumed that the handwritten notes were in the file in which they are customarily maintained and determined that they were lost only after the respondent director searched for them in preparation for the hearing in this matter. 

 

20.   It is found that the respondents do not maintain the handwritten notes that are responsive to the complainant’s request.

 

21.   Section 1-210(a), G.S., provides in relevant part that “[e]ach …[public] agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place . . . .”

 

22.   It is found that, while not willfully, the respondents failed to keep and maintain the public records described in paragraph 16, above, as required by §1-210(a), G.S.

 

23.   It is concluded, therefore, that the respondents violated the provisions of §1-210(a), G.S., by failing to keep and maintain all public records in its custody at its regular office or place of business in an accessible place.

 

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

 

1.      The respondents shall, within 10 days of the notice of final decision in this matter, provide the complainant with an affidavit that states that after a complete and thorough search of the town’s files, no records responsive to the complainant’s request were found.  Such affidavit shall indicate the nature and extent of the respondents’ search.

 

2.      The complainant may, of course, pursue any allegations of violations of the records retention requirements with the state Public Records Administrator.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 25, 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:

 

F. Michael Ayles

Antinozzi Associates

271 Fairfield Avenue

Bridgeport, CT  06604

Twig Holland, Director of Purchasing, Town of Fairfield; and

Town of Fairfield

c/o Eileen Kennelly, Esq.

Assistant Town Attorney

611 Old Post Road

Fairfield, CT  06824

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

FIC/2009-578/FD/cac/8/30/2010