FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
KEITH R. AINSWORTH
Complainant
against Docket #FIC 1996-164
DEPARTMENT OF PUBLIC WORKS,
CITY OF NEW HAVEN
Respondent November 20, 1996
The above-captioned matter was heard as a contested case on September 25, 1996, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-18a(a), G.S.
2. On March 8, 1996, the complainant requested that the respondent provide him with copies of excavation permits and application material for C.J. Fucci Construction Co. and Southern Connecticut Gas Company on Whitney Avenue and Burns Street in New Haven (“records”).
3. By letter dated March 18, 1996, the respondent, through the New Haven Corporation Counsel, denied the complainant’s records request.
4. By letter of complaint dated March 18, 1996, and filed with the Commission on March 21, 1996, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act denying him access to the records.
5. The respondent contends that this case is moot because it provided the complainant with a copy of the records. The respondent also contends that the records are exempt from disclosure pursuant to §1-19b(b)(1).
6. It is found that the requested records are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
DOCKET #FIC1996-164 PAGE 2
7. It is also found that at the time of the complainant’s records request the records were the subject of a discovery request in a pending legal action in Superior Court in which the respondent was a defendant and complainant was counsel for the plaintiff.
8. It is further found that the records were provided to the complainant pursuant to subpoena on May 10, 1996, and a clearer copy of a portion of one of the requested records was provided to the complainant in early June 1996.
9. Section 1-19(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 … receive a copy of such records in accordance with the provisions of section 1-15.
10. Section 1-15(a), G.S., in turn, provides in relevant part that:
(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
11. It is found that, if the records are not exempt from disclosure the respondent failed in this case to provide the complainant with a copy “promptly” within the meaning of §1-15(a), G.S.
12. Section 1-19b(b)(1) provides that nothing in the FOI Act shall “limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state….”
13. It is found that disclosure of the records in this case did not “limit” the rights of the respondent under the laws of discovery of this state because, notwithstanding its obligations as a public agency under the FOI Act, it was not precluded from asserting any legal claim with respect to discovery in the pending legal action. The complainant’s rights under the FOI Act in this case, however, exist independently from any party’s rights with respect to discovery in the legal action.
14. Therefore, it is concluded that at the time of the records request, the records were not exempt from disclosure under §1-19b(b)(1), G.S., and this complaint is not now moot.
DOCKET #FIC1996-164 PAGE 3
15. Consequently, it is concluded that the respondent violated §§1-19(a) and 1-15(a), G.S., when it failed in this case to provide the complainant with a copy of the records promptly.
16. The complainant requested the imposition of civil penalties against the respondent.
17. The Commission in its discretion declines to impose a civil penalty in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the promptness provisions of §§1-15(a) and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of November 20, 1996.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket # FIC 1996-164 Page 4
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:
Keith R. Ainsworth, Esq.
PO Box 1694
New Haven, CT 06507-1694
DEPARTMENT OF PUBLIC WORKS, CITY OF NEW HAVEN
c/o Judith A. Sarathy, Esq.
Assistant Corporation Counsel
165 Church Street
New Haven, CT 06510
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC
1996-164/FD/eal/120496