FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Steven Edelman,

Complainant

against Docket #FIC 95-228

Ann Bushey, Windham Town Clerk,

Respondent May 8, 1996

The above-captioned matter was heard as a contested case on January 11, 1996, at which time the complainant and 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 1-18a(a), G.S.

2. By letter of complaint dated July 10, 1995, and filed with this Commission on July 11, 1995, the complainant alleged that certain original affidavits that were available for public inspection on November 18, 1994, were not found in the Windham Town Clerk's ("town clerk") office on July 5, 1995. The complainant requested the imposition of a civil penalty.

3. The Commission takes administrative notice of the record, decision and case file in Docket #FIC 94-424, Edelman v. Diane Potvin, Administrative Secretary, Town of Windham ["town"] and Walter Pawelkiewicz, Windham First Selectman ("FIC 94-424"), wherein a copy of the subject affidavits was provided to the complainant on June 30, 1995, prior to the hearing on that contested case. The final decision in FIC 94-424 ordering "strict compliance with the disclosure requirements of 1-15 and 1-19(a), G.S.," has been appealed to the Superior Court.

4. The respondent claims that the complainant has failed to allege a violation of Connecticut's Freedom of Information ("FOI") Act because he has not alleged that the respondent failed to provide access to, or copies of the affidavits, only that the town clerk failed to have the original affidavits.

Docket #FIC 95-228 Page 2

5. It is found that the original affidavits at issue have never been "maintained or kept" as public records in the town clerk's office. At all times material, the original affidavits have been maintained or kept as part of the litigation file of an attorney working under contract to the town.

6. It is found further that the respondent has provided a copy of the subject affidavits to the complainant, as described in paragraph 3, above, and to subsequent requesters--including the complainant's father.

8. It is concluded that the respondent did not violate the FOI Act under the facts of this case.

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

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 8, 1996.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 95-228 Page 3

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

Frog Pond

Windham Center, CT06280

Ann Bushey, Windham Town Clerk

c/o Richard S. Cody, Esq.

21 East Main Street

P.O. Box 425

Mystic, CT 06355

Elizabeth A. Leifert

Acting Clerk of the Commission