FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 21, 2010, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter dated March 18, 2010 and filed March 22, 2010, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act during a February 27, 2010[1] meeting of the respondent, by denying her access to certain records that were the subject of discussion by the members of the respondent during the meeting, and again, upon written request for such records via email dated February 27, 2010.  The complainant further alleges the respondent violated the FOI Act by denying her access to expenditure records concerning the building official, requested via email dated March 17, 2010 (“expenditure records”).

 

            3.  It is found that on Saturday, February 27, 2010, the respondent held a meeting, designated as a budget workshop, at the town hall (the “meeting”).   It is found that all three members of the respondent board of selectmen (the “board”) were present at the meeting and that the complainant was also present.  It is found that, at the meeting, the members of the board had copies of certain records they were discussing (the “requested records”), and that, when the complainant asked for a copy of such records, she was told they did not have extra copies for members of the public.  It is found that the complainant was told by one of the members of the board that she should contact Sherri Soucy to obtain a copy.  

 

            4.  It is found that, during the meeting, a member of the board of finance entered the room, then left the room, and came back with a copy of the requested records for himself. 

 

            5.  It is found that there was a working photocopy machine located on the same floor in the town hall where the meeting was being held.  It is further found that none of the members of the board made any attempt to use the machine to make a copy of the requested records, described in paragraph 3, above, for the complainant, because the members of the board did not believe that they had an obligation to interrupt their meeting to do so.  At the hearing in this matter, the first selectman testified, and it is found that, there were, in fact, extra copies of the requested records, described in paragraph 3, above, available in the building on the day of the meeting, but that he “did not know where they were” at the time of the meeting. 

 

            6.  It is found that the complainant was not able to see the requested records during the meeting, and therefore did not know what the requested records were, but believed the requested records to be a draft of the 2010-2011 budget, and information related thereto.

 

            7.  It is found, however, that the requested records were, in fact, copies of the 2009-2010 budget and a list of the expenditures for that same year.  It is further found that the purpose of the meeting was to compare the 2009-2010 budget with the 2009-2010 expenditures, to determine whether, based on the 2009-2010 budget and expenditures, changes should be made to the 2010-2011 budget.

 

            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 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 . . . (3) 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 described in paragraph 2, above, are public records within the meaning of §1-200(5), G.S., and therefore must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

            12.   It is found that, as of the date of the hearing in this matter, the respondent had not yet provided the complainant with a copy of the requested records, or of the expenditure records.

 

            13.  With regard to the allegation that the respondent violated the FOI Act by denying the complainant a copy of the requested records at the time of the meeting, it is found, based upon the facts set forth in paragraphs 3, 4, and 5, above, that the respondent board members could easily have provided the complainant with a copy of the requested records, either by using the photocopier to make an additional copy for her, or by asking the board of finance member where he obtained his copy, so that another copy could be obtained for, and provided to, the complainant.  It is therefore concluded that the respondent violated the FOI Act by failing to provide the complainant with a copy of the requested records during the meeting. 

 

            14.  In reaching this conclusion, the Commission is mindful of the court’s decisions in Planning and Zoning Commission of the Town of Pomfret v. Freedom of Information Commission, Superior Court, Judicial District of N.B., No. 09-4019953S (November 10, 2009, Vacchelli, J.), and Planning and Zoning Commission of the Town of Pomfret v. Freedom of Information Commission, Superior Court, Judicial District of N.B., No. 09-4019954S (November 10, 2009, Vacchelli, J.), in which the court reversed the Commission’s decisions Docket #s FIC 2008-060 and 2008-092, holding that a public agency is not required under the FOI Act, during an evening meeting, to stop and make copies of records for members of the public in attendance. However, the judgment sustaining that administrative appeal itself has been appealed by this Commission to the Appellate Court.  See  Freedom of Information Commission v. Planning and Zoning Commission of the Town of Pomfret, AC 31780 (Appellate Court); Freedom of Information Commission v. Planning and Zoning Commission of the Town of Pomfret, AC 31781 (Appellate Court).  Therefore, pending the final resolution by the Appellate Court or the Supreme Court, the Commission maintains that its decisions in the underlying cases are correct.   

 

            15.  With regard to the allegation that the respondent violated the FOI Act by failing  to comply with the complainant’s February 27, 2010 request, described in paragraph 2, above, it is found that Sherry Soucy is an executive assistant for the town, whose duties include working with the board to compile draft budget reports for the board.

 

            16.   It is found that, on February 27, 2010, the complainant sent the following email to Sherri Soucy:  “I went to the workshop on Sat. but there were no extra copies of the budget for the public.  Could you please forward one to me by email with the same break out I asked for last year….”

 

            17.   It is found that, by email dated March 2, 2010, Ms. Soucy responded:  “I did not print out any budget info for the selectmen.  They did not request anything from me yet.  I was told it was just a workshop to get questions together for the budget.  I have not put anything together yet….” 

 

            18.  It is found that, by email dated March 11, 2010, the complainant sent the following email to Ms. Soucy:  “Sherry, I’m still waiting for you to forward the budget information you have prepared for the selectmen and the Board of Finance with the salaries shown for each individual reflected separately….”  

 

            19.  It is found that, by email dated March 18, 2010, Ms. Soucy replied:  “ I have not yet prepared the budget for the board of finance yet.  The info that has gone to the selectmen is only a working draft.  I have not prepared the salary info yet.  I just got the information from the selectmen….”

 

            20.  At the hearing in this matter, Ms. Soucy testified that she misunderstood the complainant’s February 27^th request, described in paragraph 16, above, believing it to be a request for a copy of the 2010-2011 draft budget.  However, it is found that the only reasonable interpretation of the February 27^th request is that it was a request for a copy of the records, whatever they were, that the board was reviewing and discussing at the meeting.  It is also found that Ms. Soucy never asked any member of the board which documents they were reviewing and discussing at the meeting, so that she could have properly responded to the request.

 

            21.  It is found that the respondent violated the FOI Act, by failing to comply with the February 27^th email request, described in paragraph 16, above, for the requested records.

 

            22.  With regard to the request, described in paragraph 2, above, for the expenditure records, it is found that, during the meeting, one of the matters discussed was mileage paid to the building inspector.  It is found that, at the time of the meeting, the building inspector was reimbursed by the town for mileage he incurred when he conducted inspections, on the basis of the submission of slips of paper, sometimes consisting of the backs of envelopes, typically on a monthly basis, on which he had written the number of miles he had travelled, the cost per mile, and the total amount for which he was requesting reimbursement (the “mileage reimbursement requests”).  It is found that the mileage reimbursement requests were not related to a particular permit or inspection he had conducted.  It is further found that the mileage reimbursement requests were filed with the inspector’s time sheets.  It is found that the budget for mileage reimbursement expenditures had increased, and that the board discussed at the meeting instituting a new reporting system by which the inspector would be required to provide more detailed information with the mileage reimbursement requests.

 

            23.  It is found that, on March 17, 2010, via email, the complainant requested “the permit reports with corresponding mileage that the building official has submitted to the selectmen.”  It is further found that the complainant and Ms. Soucy then had the following email exchange, all occurring on March 17, 2010: 

 

Ms. Soucy:  “…I do not prepare the mileage reports for the first selectmen.  I just receive a total amount of mileage from the building official.  He has not given me any mileage for February….” 

 

Complainant:  “[The first selectman] told me there is a report he requested from the building official documenting his mileage for each permit he completes.  There is a mileage allowance being paid to the building official for inspections done on a monthly basis.  I want copies of his request for reimbursement for his mileage for each permit.  Please provide it as this account was fully expended last year and is larger for this year.  Again, he is getting paid for mileage, so I know there are requests being submitted.” 

 

Ms. Soucy:  “I do not have any current requests for mileage from the building inspector.”  You will have to ask [the first selectman] for the reports that he has requested from the building inspector.”

 

            24.  At the hearing in this matter, Ms. Soucy testified that she did not comply with the request, described in paragraph 23, above, on behalf of the board because she interpreted the request as a request for the mileage reports only, discussed at the meeting which, at the time of the request, had not yet been instituted or created.    

 

            25.  However, it is found that such a narrow interpretation of the request is unreasonable, given that the complainant provided additional information in the email exchange with Ms. Soucy, set forth above, concerning the records she was seeking, which should have indicated to Ms. Soucy that she was seeking any records that would have documented the mileage reimbursements requested by the building official.  It is found that the respondent maintained records responsive to the request for expenditure records and failed to provide them to the complainant.

 

            26.  It is therefore concluded that the respondent violated the FOI Act in failing to comply with the request for expenditure records, described in paragraph 2, above, and further described in paragraph 22, above.     

 

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

            1.   If the respondent has not already done so, the respondent shall, forthwith, provide the complainant with a copy of the 2009-2010 budget and list of expenditures, and such other records that were the subject of discussion at the meeting, free of charge.

 

            2.  The respondent shall forthwith provide the complainant with a copy of all expenditure records, responsive to the request described in paragraph 2, above, and further described as mileage reimbursement requests in paragraph 22, above, submitted for payment to Ms. Soucy between January 1, 2009 and December 30, 2009.  To the extent there are months for which no records exist, the respondent shall provide the complainant with an affidavit from Ms. Soucy stating the reasons therefor.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 17, 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:

 

Sebrina Heroux

P.O. Box 157

Brooklyn, CT 06234

Board of Selectmen,

Town of Brooklyn

C/o Mark R. Brouillard, Esq.

St. Onge & Brouillard

P.O. Box 550

Putnam, CT 06260

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-183FD/sw/11/22/2010