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