FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Paul Bradley,

Complainant

against Docket #FIC 1995-377

New Haven County Soil and Water

Conservation District, Inc.,

Respondent September 25, 1996

The above-captioned matter was heard as a contested case on June 20, 1996, 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 §1-18a(a), G.S.

2. By letter of complaint filed with this Commission on October 20, 1995, the complainant alleged that the respondent violated the provisions of the Freedom of Information (“FOI”) Act with regard to its August 25, 1995 meeting, that the respondent denied him copies of meeting tapes on two unspecified occasions, and that the respondent denied him prompt access to public records on October 18, 1995.

3. At the hearing into this matter, the respondent moved to dismiss the complainant’s claims with respect to its August 25, 1995 meeting and with respect to a denial of copies of tapes for lack of subject matter jurisdiction.

4. Section 1-21i(b)(1), G.S., states in pertinent part:

A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

5. It is found that the respondent’s August 25, 1995 meeting was not secret or unnoticed within the meaning of §1-21i(b)(1), G.S.

6. It is concluded that this Commission lacks jurisdiction over those allegations pertaining to the respondent’s August 25, 1995 meeting pursuant to §1-21i(b)(1), G.S.

7. It is found that the complainant’s claim concerning the denial of copies of tapes as outlined in his complaint does not allege a violation to have occurred within 30 days of the filing of the complaint in this matter, nor was an amendment to the complaint in this matter at any time submitted to this Commission.

8. Consequently, the respondent’s motion to dismiss with respect to both the August 25 meeting and the tapes is hereby granted.

9. It is found that on October 18, 1995, the complainant arrived at the respondent’s offices and requested access to the following records from Ms. Gaumer, the respondent’s former district manager and current executive director:

a) the annual auditors report for 1994;

b) grants administrator reports for the New Haven foundation grant; and

c) reconciled checking account statements.

10. The records identified in paragraph 9 a) - c), above, are public records within the meaning of §1-18a(d), G.S.

11. It is found that the respondent is made up of a seven member board of supervisors, one employee (Ms. Gaumer), one part time consultant, and occasional interns for work on specific grant projects. During the period leading up to the time of the complainant’s appeal to this Commission, he had served as a member of the board of supervisors.

12. It is found that at the end of September, 1995, the respondent’s offices were relocated along with other agencies, all of which used the same mover.

13. It is found that Ms. Gaumer had personally packed and labeled thirty (30) to forty (40) boxes for the respondent’s office, not including furniture and equipment.

14. It is also found that not all labels on the packed boxes survived the move, and that it took several weeks to unpack, in part because the move occurred at the same time as a major fund-raising effort of the respondent.

15. It is found that on October 18, 1995, the complainant appeared at the respondent’s offices and requested immediate access to the records identified in paragraph 9 a) - c), above.

16. It is found that the respondent informed the complainant that many of the records at issue were not yet unpacked, and that best efforts would be made to obtain those records for him as soon as possible.

17. It is found that on October 19, 1995, the respondent mailed to the complainant the records identified in paragraph 9 a), above, and on October 20, 1995, the respondent mailed to the complainant those records identified in paragraph 9 b), above.

18. It is also found that on October 23, 1995, the respondent left a message on the complainant’s telephone answering machine indicating that the records identified in paragraph 9 c), above, had been located and that they would be taken to that evening’s board meeting for the complainant.

19. It is found that the complainant did not appear at the respondent’s October 23, 1995 meeting, nor did he ever respond to the respondent’s telephone message by appearing to collect the documents or calling to arrange for another method of delivery.

20. When the respondent learned in mid-November of the complaint in this matter through an assistant attorney general and that the complainant still sought the records identified in paragraph 9 c), the respondent mailed those records to the complainant on November 21, 1995.

21. At the hearing into this matter, the complainant objected several times to conducting the hearing without the presence of the respondent’s counsel who had filed the original appearance in this matter. The complainant also requested that civil penalties be assessed against the respondent for failure to comply with the provisions of the FOI Act.

22. To the extent the complainant’s statements identified in paragraph 21, above, imply a motion to sanction the respondent for counsel’s failure to appear or to reopen the hearing into this matter, such motion is denied.

23. At the hearing into this matter, the complainant also alleged that the respondent gave him records that he did not in fact request.

24. It is found that the respondent forwarded copies of all records to the complainant that it reasonably believed fell within his request, including some pages that were two-sided.

25. Section 1-19(a), G.S., provides in pertinent part, “…all records maintained or kept on file by any public agency … shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours …”

26. It is concluded that the respondent’s grant of access to the complainant for those records requested on October 18, 1995, was reasonable under the circumstances and accordingly “prompt” within the meaning of §1-19(a), G.S.

27. It is accordingly concluded that under the facts of this case, the respondent is not in violation of any provision of the FOI Act.

28. At the hearing into this matter the respondent moved that this Commission determine that the appeal was taken frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken pursuant to §1-21i(b)(2), G.S.

29. Section 1-21i(b)(3), G.S., provides in pertinent part:

In making the findings and determination under subdivision (2) of this subsection the commission shall consider the nature of any injustice or abuse of administrative process, including but not limited to: (A) the nature, content, language or subject matter of the request or the appeal; (B) the nature, content, language or subject matter of prior or contemporaneous requests or appeals by the person making the request or taking the appeal; and (C ) the nature, content, language or subject matter of other verbal and written communications to any agency or any official of any agency from the person making the request or taking the appeal.

30. It is found that during the complainant’s visit to the respondent on October 18, 1995, he demanded documents from Ms. Gaumer in a curt manner.

31. It is also found that when the complainant served on the board of supervisors, he informed Ms. Gaumer that she was incompetent and that he would get her fired.

32. It is found that at a board of supervisor’s meeting on July 24, 1995, the complainant made a motion to fire Ms. Gaumer, which motion was defeated.

33. It is also found that at a September 25, 1995 meeting of the board of supervisors, the complainant made an intimidating statement to Ms. Gaumer.

34. Although it appears from the record that the relationship between the complainant and Ms. Gaumer is strained, the Commission declines in this case to enter a finding that the appeal was taken frivolously, without reasonable grounds and solely for the purpose of harassing the respondent.

35. The respondent’s motion identified in paragraph 28, above, is accordingly denied.

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.

2. Although the respondent’s motion identified in paragraph 28 of the findings, above, was denied in this case, this Commission strongly cautions the complainant that the record and final decision in this case may be considered where appropriate in future cases.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1996.

__________________________

Elizabeth A. Leifert

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:

Paul Bradley

Rolling Acres Farm

Foxon Road

North Branford, CT 06471-1102

New Haven County Soil and Water Conservation District, Inc.

c/o Eliot D. Prescott, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-120

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission