FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Nancy Sobocinski,

Complainant

against Docket #FIC 86-339

Commissioner, State of Connecticut Department of Transportation,

Respondent April 8, 1987

The above-captioned matter was heard as a contested case on February 26, 1987, 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:

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

2. By letter dated October 13, 1986 the complainant, through counsel, made a request of the respondent for copies of the following:

a. All documents relating to failures or malfunctions of the overhead traffic control signals at the intersection of the Boston Post Road and Lambert Road in Orange, Connecticut, between August 1, 1974 and August 1, 1984; and

b. Documents, inter-office memos, policy statements or any writings relating to the method or procedure for traffic control in the event of an electrical power failure to overhead traffic control signals controlled by the respondent, including but not limited to the traffic control signals at the intersection of the Boston Post Road and Lambert Road in Orange, Connecticut, in 1984.

3. By letter dated November 12, 1986 the respondent denied the complainant's request, on the advice of counsel, on the ground that the request referred to pending litigation. The respondent suggested that any requests for documents regarding such litigation be made through the court discovery process.

Docket #FIC 86-339 Page Two

4. By letter of complaint filed with the Commission on December 8, 1986 the complainant appealed the denial of her request for records.

5. It is found that on or about July 7, 1986 the complainant filed suit against the respondent in the Superior Court for the Judicial District of Ansonia/Milford in connection with a motor vehicle accident. In such lawsuit the complainant alleged that the overhead traffic signals which usually control traffic at the intersection of the Boston Post Road and Lambert Road in Orange, Connecticut were not functioning and that the respondent knew or should have known that such traffic signals were not operating and should have taken corrective measures.

6. In interrogatories and requests for production dated September 11, 1986 and filed in Superior Court the complainant made a request of the respondent for production of copies of all documents relating to failures or malfunctions of the overhead traffic control signals at the intersection of the Boston Post Road and Lambert Road in Orange, Connecticut, between August 1, 1974 and August 1, 1984. The complainant also posed an interrogatory which asked whether, on August 1, 1984, the respondent or its agents, servants or employees had any procedure in place whereby it or they would be notified if there were a failure or malfunction of a traffic control signal of which they had control and maintenance responsibility.

7. On or about September 23, 1986 the respondent filed notice in Superior Court of his objections to the complainant's interrogatory and request for production. As of the date of hearing, the complainant had taken no action to secure a hearing on the respondent's objections and the court, consequently, had not ruled on such objections.

8. On or about November 7, 1986 the respondent filed a motion for a protective order with the Superior Court, which motion was argued November 24, 1986. The motion was denied by the court "without prejudice."

9. The respondent claims that compliance with the complainant's request for records would result in the disclosure of the information requested in the complainant's interrogatory and request for discovery and that, therefore, compliance is not required pursuant to 1-19b(b), G.S.

10. The respondent also claims that the granting or denial of the complainant's request rests with the court and is governed by 52-197, G.S. and Conn. Prac. Book 217-221 and that interference with the court's authority over such request would be an unconstitutional violation of the separation of powers.

Docket #FIC 86-339 Page Three

11. It is found that, under the circumstances described above, requiring the production of the records requested by the complainant would affect the rights of litigants under the laws of discovery of this state within the meaning of 1-19b(b), G.S.

12. It is concluded, pursuant to 1-19b(b), G.S., that the respondent's failure to produce records in response to the complainant's October 13, 1986 request did not violate 1-15 or 1-19(a), G.S.

13. The Commission does not need to address alternate grounds raised by the respondent for withholding the documents in question.

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 April 8, 1987.

ÿ

Catherine I. Hostetter

Acting Clerk of the Commission