FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

  

The above-captioned matter was heard as a contested case on September 21, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter has been consolidated with Docket #FIC 2011-161, Frank J. Kolb, Jr., v. Mayor, Town of East Haven and Town of East Haven; and Docket #FIC 2011-343, Joseph Disilvestro v. Mayor, Town of East Haven and Town of East Haven. 

 

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, on March 23, 2011, the complainant requested from the respondents a copy of: 

 

Any and all types of communications, without exclusion of any type, between and among the Town, any of its elected, appointed, temporary or employed persons or legal entities of and concerning the work of Department of Justice [DOJ] performed regarding the Town of East Haven.  I mean both wholly internal communications and communications from inside the Town to DOJ as well as notes, memoranda, etc. of oral communications of any type concerning the DOJ’s work for the Town within the last 24 months.

 

3.  It is found that, by letter dated March 27, 2011, the respondents acknowledged receipt of the request.

 

4.  By letter of complaint, dated and filed April 20, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to provide him with a copy of the requested records, described in paragraph 2, above.

 

5.  It is found that, by letter dated May 3, 2011, the respondents denied the request for records, described in paragraph 2, above, on the ground that such records are exempt from disclosure pursuant to §1-210(b)(3), G.S.[1]

 

6.  It is found that, by letter dated May 5, 2011, the complainant challenged the respondents’ denial, stressing that he was looking for internal correspondence between the town and the DOJ, and arguing that the claimed exemption is therefore inapplicable. 

 

7.  It is found that, by letter dated May 11, 2011, counsel for the respondents reiterated the respondents’ position that the requested records are exempt from disclosure pursuant to §1-210(b)(3), G.S.

 

8.  It is found that, during the month of September, 2011, prior to the hearing in this matter, the respondents provided the complainant with all records responsive to the request, described in paragraph 2, above.

 

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 . . . (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 respondents maintain the records described in paragraph 2, above, and that records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), unless they are exempt from disclosure. 

 

13.  At the hearing in this matter, the complainant stated that he wished to pursue his complaint, despite having received the requested records, because the respondents’ claimed exemption deprived him of prompt access to such records, in violation of the FOI Act.

 

14.  The respondents testified that they misunderstood the request, described in paragraph 2, above, and believed the complainant was seeking all records the respondents had provided to the DOJ, and that therefore, they needed the approval of the DOJ to disclose such records.  The respondents further testified that they sought and later obtained approval of the DOJ to release all records to the complainant, and thereafter provided copies of such records to the complainant. 

 

15.  It is found that the respondents failed to promptly provide the complainant with copies of the requested records, in accordance with §§1-210(a) and 1-212(a), G.S. 

 

16.  Accordingly, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S. 

 

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

 

1.  Henceforth, the respondents shall strictly comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2011.

 

__________________________

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:

 

Frank J. Kolb, Jr.

c/o Joseph A. Disilvestro, Esq.

Kolb & Associates, P.C.

49 High Street

East Haven, CT  06512

 

Mayor, Town of East Haven; and

Town of East Haven

c/o Michael A. Albis, Esq.

Hilcoff & Albis, LLC

58 Edward Street

East Haven, CT  06512

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-212/FD/cac/12/16/2011