FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Lindsay W. Smith and
Susan M. Smith,
Complainants,
against Docket
#FIC 1996-210
Richard Smith, First Selectman,
Town of Deep River and John Kennedy,
Chairman, Conservation and Inland
Wetlands Commission, Town of
Deep River,
Respondents, December
11, 1996
The above-captioned
matter was heard as a contested case on October 4, 1996, at which time the
complainants and the respondents 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
respondents are public agencies within the meaning of §1-18a(a),
G.S.
2.
By
letter of complaint dated May 16, 1996, and filed with the Commission on May
20, 1996, the complainants appealed to the Commission alleging that the
respondents violated the Freedom of Information (“FOI”) Act by failing to
provide them with copies of certain records requested by them on April 19,
1996. The complainants also requested
the imposition of civil penalties against the respondents and certain other
forms of relief.
3.
It
is found that the subject records consist of a letter from an attorney and an
engineer’s report pertaining to an application to develop a parcel of land
contiguous to the complainants’ property, which records were received by the
respondent chairman sometime prior to the Conservation & Inland Wetlands
Commission’s (“CIWC”) vote in favor of the application at its April 18, 1996
meeting.
4.
It
is found that the subject records are public records within the meaning of §§1-18a(d)
and 1-19(a), G.S.
Docket #1996-210 Page
2
5.
It
is found that on April 19, 1996 the complainants went to town hall and
requested copies of the subject records, and were told by the town clerk and
the respondent first selectman’s secretary that the records were not available
because no one had a key to the locked file cabinet in the office where the
records were stored.
6.
It
is further found that on the same date, the complainants then requested copies
of the records from the respondent chairman by letter. In their letter, the complainants also
inquired about the cost of obtaining audio tapes of the CIWC meetings.
7. It is further found that on May 2, 1996, the
complainant, Mrs. Smith, visited the respondent first selectman’s office,
sought his help in obtaining the requested records, and showed him the request
letter to the respondent chairman. Mrs.
Smith also stated at that time that she wanted a copy of the audio tape of one
of the CIWC’s meetings.
8. It is found that the respondent first
selectman attempted to assist the complainants by placing a call to the respondent
chairman and leaving a message to call him as soon as he received the message.
9. It is further found that the complainants
thereafter contacted the first selectman on several occasions seeking further
assistance and that the first selectman informed them that the respondent
chairman had told him that he would be providing them with the requested
records.
10. It is further found that on May 18, 1996,
the complainants received a letter from the respondent chairman informing them
of the costs for copies of audio tapes, along with copies of the subject
records, described in paragraph 3., above.
11. The complainants stated at the hearing on
this matter, that the copy of the audio tape requested of the respondent first
selectman on May 2, 1996 is not at issue in this appeal. Consequently, the only question before this
Commission is whether the complainants received prompt access to copies of the
subject records.
12. 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.
Docket #FIC 1996-210 Page
3
13. 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.
14. The respondent chairman argued that the
complaint should be dismissed because he fully complied with the complainant’s
request and did so in a timely manner.
The respondent claimed that it took him some time to comply because the
complainants had made an earlier inquiry of him that he was trying to respond
to as well, and because he had to research the “legal implications” of
reproducing and providing the complainants with copies of audio tapes.
15. It is found however, that the respondent
chairman’s provision of the subject records to the complainants, a full month
after their request, was not prompt within the meaning of §1-15(a),
G.S.
16. Consequently, it is concluded that the
respondent chairman violated §§1-19(a)
and 1-15(a), G.S., when he failed in this case to provide the complainants with
copies of the requested records promptly.
17. With respect to the respondent first
selectman, it is found that he is not the custodian of the requested records
and was simply attempting to assist the complainants in their effort to obtain
the subject records from the respondent chairman.
18. It is therefore concluded that the
respondent first selectman did not violate the FOI Act under the facts of this
case.
19. The Commission in its discretion declines to
impose a civil penalty in this matter and to order the other relief requested
by the complainants.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. Henceforth, the respondent chairman shall
strictly comply with the promptness provisions of §§1-15(a)
and 1-19(a), G.S.
2. The complaint is hereby dismissed with
respect to the respondent first selectman.
Docket #FIC 1996-210 Page
4
3. Due to evidence offered at the hearing on
this matter, the Commission wishes to advise the respondent chairman that all
of the records of the CIWC, whether located in the town clerk’s office or some
other office in town hall, must be maintained in a manner consistent with the
public access provisions set forth in §§1-15(a)
and 1-19(a),G.S., and that the Commission’s legal staff is available to discuss
with him how to ensure such consistency.
Approved by Order of the Freedom of Information
Commission at its regular meeting of December 11, 1996.
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
Docket # FIC 1996-210 Page
5
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:
Lindsay W. Smith and Susan M. Smith
92 Stevenstown Road
Deep River, CT 06417
Richard Smith, First Selectman, Town of Deep
River
Town Hall
Deep River, CT 06417
John Kennedy, Chairman, Conservation and Inland
Wetlands Commission,
Town of
Deep River
Town Hall
Deep River, CT 06417
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
FIC 1996-210/FD/eal/121696