FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Donald W. Favry,

 

                        Complainant

 

            against              Docket #FIC 92-328

 

Harold R. White, President, Marlborough Association for Senior Housing,

 

                        Respondent                  June 11, 1993

 

            The above-captioned matter was heard as a contested case on April 8, 1993, 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.  By letter of complaint dated October 19, 1992, and filed with the Commission on October 20, 1992, the complainant alleged that the respondent failed to comply with his October 5, 1992 records request.  The complainant requested the imposition of a civil penalty against the respondent.

 

            3.  It is found that on October 5, 1992, the complainant made a written request to the respondent for a copy of the following records:

 

            (a)  all proxies submitted by the respondent at the Marlborough Association for Senior Housing (hereinafter "MASH"), meeting on September 19, 1992; and

 

            (b)  the list of new MASH members, and account records reflecting how membership fees were paid (e.g., by cash or check.)

 

Docket #FIC 92-328                           Page 2

 

            4.  It is found that by letter dated October 14, 1992, the respondent provided the complainant with all available information relating to payment of MASH membership fees.

 

            5.  It is found that a copy of the list of persons voting by proxy was provided to the complainant in early November, 1992.

 

            6.  It is found, however, that the complainant sought a copy of each proxy form (hereinafter "proxies"), that the respondent held, and made that fact known to the respondent.

 

            7.  It is found that by letter dated February 11, 1993, the respondent informed the complainant that he would provide the proxies after the complainant prepaid the sum of sixteen dollars ($16.00); an outstanding balance of nine dollars ($9.00), plus seven dollars ($7.00) to provide copies of the fourteen proxies.

 

            8.  Despite his offer to provide the complainant with a copy of the requested records, at the hearing on this complaint the respondent argued that the proxies are not public records.

 

            9.  Section 1-18a(d), G.S., in pertinent part defines "public records or files" as any recorded data or information "relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency."

 

            10.  It is found that the proxies at issue were submitted to and used by MASH to determine and verify the validity of a public vote taken at a publicly held meeting, regarding the conduct of the public's business as carried out by MASH.

 

            11.  It is therefore concluded that the records sought are public records within the meaning of 1-18a(d), G.S., and the respondent violated 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with copies of the proxies.

 

            12.  It is found that although the respondent subsequently retrieved his proxies from MASH the proxies remained public records; the originals or copies of the proxies should have remained on file with MASH.

 

            13.  It is found that since early November, 1992, the respondent has been charging a fee for providing copies of MASH's nonexempt public records, in accordance with the provisions of 1-15, G.S.

 

Docket #FIC 92-328                           Page 3

 

            14.  It is found, however, that in calculating the sixteen dollar ($16.00) fee that the respondent told the complainant he had to prepay, the respondent improperly included charges for the labor to retrieve and copy the requested records.

 

            15.  The respondent conceded that without the inclusion of the impermissible charge for labor the total cost for copies, including outstanding charges, is probably less than ten dollars ($10.00).

 

            16.  It is concluded that absent other evidence demonstrating the need to request prepayment of the copying fee by this complainant, the respondent's request for prepayment was improper under the provisions of 1-15, G.S.

 

            17.  The Commission notes that both MASH and the town clerk as the official who provides copies of MASH's nonexempt public records, must properly levy and collect fees for providing copies of requested records in a nondicriminatory manner, in accordance with 1-15, G.S.

 

            18.  The Commission declines to impose a civil penalty against the respondent.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent shall forthwith provide the complainant with copies of the requested proxies, without charge.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 9, 1993.

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission

 

Docket #FIC 92-328                           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:

Donald W. Favry

20 School Drive

Marlborough, CT 06447

 

Harold R. White, President, Marlborough Association for Senior Housing

P. O. Box 256

Marlborough, CT 06447

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission