FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Lloyd Crossland,

 

                                Complainant

 

                against                   Docket #FIC 94-146

 

M. Jeffry Spahr, Norwalk Deputy Corporation Counsel, and Lester

Bell, Chairman, Norwalk Conservation Commission,

 

                                Respondents                        March 22, 1995

 

                The above-captioned matter was heard as a contested case on October 25, 1994, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for hearing with docket numbers FIC 94-127, Lloyd Crossland against Norwalk Conservation Commission; FIC 94-138, Lloyd Crossland against Norwalk Conservation Commission; and FIC 94-228, Lloyd Crossland against Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.

 

                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 filed May 10, 1994, the complainant appealed to the Commission, alleging that his April 13, 1994 request for certain records had been denied by the respondent deputy corporation counsel by letter dated April 26, 1994, and requesting the imposition of civil penalties against both respondents.

 

                3.             It is found that the complainant by letters dated April 13, 1994 requested from the chairman of the respondent conservation commission copies of the following documents:

 

                                a.             an invoice relating to work done by Leonard Jackson;

 

                                b.             audio tapes of the conservation commission's November 14, 1983 and March 17, 1986 meetings; and

 

                                c.             the adopted motion and the audiotapes of the April 12, 1984 meetings.

 

Docket #FIC 94-146                                             Page 2

 

                4.             It is found that the Norwalk conservation commission answered the complainant's April 13 request by a letter dated April 25, 1994, but did not then provide copies of any of the requested records.  The April 25, 1994 letter also referred the complainant to the respondent deputy corporation counsel for copies of tapes.

 

                5.             It is found that the respondent deputy corporation counsel by letter dated April 26, 1994 acknowledged the complainant's request for the March 27, 1986 and November 14, 1983 tapes, indicating that the respondents did not have a copy of the March 27, 1986 tape, and that the complainant had already declined a copy of the November 14, 1983 tape when it was produced for him.

 

                6.             It is found that all issues aside from the respondent deputy corporation counsel's April 26, 1994 response to the complainant concerning the two tapes have been addressed in the decisions in the matters consolidated with this case.

 

                7.             It is found that the Norwalk conservation commission made audiotapes of its November 14, 1983 and March 17, 1986 meetings.

 

                8.             It is concluded that the requested audiotapes are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                9.             The respondents maintain that the March 17, 1986 meeting tape cannot be located.

 

                10.           At the request of the respondents, the Commission takes administrative notice of the fact that the minimum retention period required for audio tapes of inland wetland matters is four years.

 

                11.           It is found, however, that the respondents have retained and recently made available to the complainant tapes from as far back as at least 1981, and they offered no evidence as to why the March 17, 1986 tape would not have been similarly retained and available.

 

                12.           It is also found that the respondents produced no evidence to prove that the March 17, 1986 meeting tape either was re-used or has been diligently searched for.

 

                13.           The respondents maintain that the tape of the November 14, 1983 meeting was made available to the complainant at a May 5, 1993 deposition, while the complainant maintains that it was not.

 

                14.           It is found that the respondents by letter dated May 12, 1994 offered to make the original tape available to the

 

Docket #FIC 94-146                                             Page 3

 

complainant, but required the complainant to make arrangments to copy the tape at his own expense.

 

                15.           Section 1-15(a), G.S., provides in part that "[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

 

                16.           It is found that the cost of a copy of the audiotape is not before the Commission, since no copy was made.

 

                17.           It is concluded that, cost issues aside, the respondents may not require the complainant to make his own copy of a public record.

 

                18.           Furthermore, whether or not the November 14, 1983 meeting tape had been made available a year earlier, it is found that the respondents initially denied the complainant's April 19, 1994 request for a copy of the same tape.

 

                19.           It is therefore concluded that the respondents violated 1-15(a), G.S., by failing to provide a copy of the requested audiotape.

 

                20.           It is found that the respondent deputy corporation counsel is the official directly responsible for the denial of the complainant's requests.

 

                21.           At the hearing, the respondent deputy corporation counsel offered no reasonable grounds for denying the complainant's requests for any of the records at issue in this case, except to claim that he has made all of the conservation commission's records available to the complainant in an effort to settle this case, and to claim that he is unclear what records the complainant is seeking.

 

                22.           It is concluded that settlement negotiations are not relevant to the Commission's determination of whether the respondent's denial was without reasonable grounds.

 

                23.           Also, it is found that the complainant's request for records in this case was entirely clear.

 

                24.           It is concluded that the respondent deputy corporation counsel's April 26, 1994 denial of the complainant's requests was without reasonable grouds.

 

                25.           The Commission notes that the issue of civil penalties against the deputy corporation counsel for a broader range of unreasonable denials of access to records is addressed in docket #FIC 94-228, Lloyd Crossland against Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.

 

Docket #FIC 94-146                                             Page 4

 

                26.           The Commission therefore in its discretion declines to impose additional civil penalties in this case.

 

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

 

                1.             The respondents shall forthwith provide to the complainant a copy of audiotape of the respondent's November 14, 1983 meeting.

 

                2.             The respondents shall forthwith conduct a diligent search for the audiotape of the March 17, 1986 meeting and either provide a copy of the audiotape to the complainant, or provide to the complainant an affidavit attesting to its search and that no such tape exists.  The respondents shall direct that the search be conducted, and the affidavit executed, by the Norwalk conservation commission's senior environmental officer.  The affidavit shall recite the method of the search, the records that were searched, the location of those records, and the date and duration of the search.

 

                3.             Henceforth the respondents shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 22, 1995.

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission

 

Docket #FIC 94-146                                             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:

 

LLOYD CROSSLAND

64 Range Road

Wilton, CT 06897

 

c/o Ridgely Brown, Esq.

Brown & Brown

P.O. Box 1205

Darien, CT 06820

 

NORWALK CONSERVATION COMMISSION

c/o Sarah Oley, Esq.

M. Jeffry Spahr, Esq.

Corporation Counsel's Office

P.O. Box 798

Norwalk, CT 06856-0798

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission