FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Lloyd Crossland,

 

                                Complainant

 

                against                   Docket #FIC 94-228

 

Norwalk Conservation Commission and M. Jeffry Spahr

Norwalk Deputy Corporation Counsel,

 

                                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 respondent 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 94-146, Lloyd Crossland against M. Jeffry Spahr, Norwalk Deputy Corporation Counsel and Lester Bell, Chairman, Norwalk Conservation Commission.

 

                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 July 13, 1994, the complainant appealed to the Commission, alleging that his June 24, 1994 request for certain rcords had been denied, 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 94-228                                             Page 2

 

                4.             It is found that respondent conservation commission answered the complainant's April 19 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 referred the complainant to the respondent deputy corporation counsel for copies of tapes.

 

                5.             It is found that the respondent Spahr 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 the respondent Spahr by letter dated June 15, 1994 proposed a meeting at the city of Norwalk's storage facility at which time the complainant would be given access to all the boxes of tapes currently held.  The letter indicated that the complainant would himself be required to arrange for an outside company to make copies of tapes.

 

                7.             It is found that the complainant by letter dated June 24, 1994 indicated that a meeting such as that proposed in the respondent corporation counsel's June 15, 1994 letter would be a good starting point, but that the complainant would need to search through the conservation commission's agendas and minutes before he knew which tapes he wanted copied.

 

                8.             It is also found that the complainant's June 24, 1994 letter is reasonably read as continuing his April 14, 1994 request, which had not been met.

 

                9.             It is found that the respondent Spahr by letter dated June 30, 1994 indicated that the complainant would be allowed to inspect any agendas and minutes of conservation commission meetings that the conservation commission had in its possession, subject to coordination with the senior environmental officer as to dates and times; and that the complainant would be allowed to inspect any tapes still in existence, identify the ones he wished copied, and himself arrange for copies to be made with an independent sound studio.

 

                10.           It is found that no meeting such as the one proposed by the respondent deputy corporation counsel occurred between the complainant and the respondents, and that the complainant's April 13, 1994 requests remained unfulfilled.

 

                11.           The respondent deputy corporation counsel maintains that the complainant never followed up on his June 15 and June 30, 1994 offers to inspect the records at the respondents' storage site, and that therefore the complainant should not be able to complain that he was denied access to any records.

 

Docket #FIC 94-228                                             Page 3

 

                12.           It is found that the respondent Spahr's June 15 and June 30, 1994 letters enclosed no copies of the records requested by the complainant on April 13, 1994, and instead required the complainant to meet with the respodnents and more particularly identify the records he wished to have copied.

 

                13.           It is also found that by June 15, 1994, the deputy corporation counsel had assumed responsibility for making records requested by the complainant on April 13, 1994 available, or not available, to him.

 

                14.           It is found that the deputy corporation counsel knew or should have known that the complainant's April 13, 1994 requests remained unfulfilled.

 

                15.           It is also found that the complainant's April 13, 1994 requests are clear.

 

                16.           It is therefore found that the deputy corporation counsel's letters of June 15 and 30, 1994 were, under the circumstances of this case, simply impediments to and denials of the complainant's April 13, 1994 requests, and an attempt to impose preconditions upon the complainant's access to public records.

 

                17.           With respect to the requested invoice, it is found that the complainant at all times material to this matter had an inland-wetlands application before the respondent conservation commission.

 

                18.           It is found that the Norwalk department of public works retained a consultant to comment on drainage at the property that was the subject of the inland-wetlands application.

 

                19.           It is found that an invoice reflecting the consultant's work and fee was in the file maintained by the respondent concerning the inland-wetlands application.

 

                20.           It is concluded that the invoice is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                21.           The respondents make no claim that the invoice is exempt from disclosure, but maintain that the invoice was delivered by them to another agency.

 

                22.           It is concluded that the respondents may not permissibly abrogate their responsibilities under the Freedom of Information Act by delivering documents to other agencies and then declining to exercise any control over the transferred documents.

 

Docket #FIC 94-228                                             Page 4

 

                23.           It is found that the respondents failed to provide a copy of the invoice to the complainant.

 

                24.           It is concluded that the respondents violated 1-15(a) and 1-19(a), G.S.

 

                25.           With respect to the request audiotapes, it is found that the Norwalk conservation commission made audiotapes of its November 14, 1983, March 17, 1986 and April 12, 1994 meetings.

 

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

 

                27.           It is found that the complainant received a copy of the April 12, 1994 audiotape, and that his receipt of that tape is not at issue in this case.

 

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

 

                29.           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.

 

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

 

                31.           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.

 

                32.           It is also found that the Commission does not find entirely credible the repondents' testimony concerning the disappearance of the March 17, 1986 meeting tape, and does not find the respondents' evidence or representations to outweigh the doubt created by the complainant's evidence of the tape's existence.

 

                33.           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.

 

                34.           It is found that the respondent deputy corporation counsel by letter dated May 12, 1994 offered to make the original tape available to the complainant, but required the complainant to make arrangements to copy the tape at his own expense.

 

Docket #FIC 94-228                                             Page 5

 

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

 

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

 

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

 

                38.           Furthermore, whether or not the November 14, 1983 meeting tape had been made available a year earlier, it is found that the respondents denied the complainant's April 13, 1994 request for a copy of the same tape.

 

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

 

                40.           It is found that, at the respondent conservation commission's April 12, 1994 meeting, a member of the conservation commission read a motion from a two-page typewritten document, which motion was adopted by the conservation commission.

 

                41.           It is concluded that the requested motion is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                42.           The respondents make no claim that the requested record is exempt from disclosure.

 

                43.           It is concluded that the respondents violated 1-15(a) and 1-19(a), G.S., by failing to provide to the complainant a copy of the written motion.

 

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

 

                45.           On its own motion, the Commission takes administrative notice of its records and final decisions in docket numbers FIC 92-48, Lloyd B. Crossland against Chairman, Norwalk Conservation Commission; FIC 93-215, Lloyd B. Crossland against Chairman, Norwalk Conservation Commission; FIC 94-127, Lloyd Crossland against Norwalk Conservation Commission; FIC 94-138, Lloyd Crossland against Norwalk Conservation Commission; and FIC 94-146, Lloyd Crossland against M. Jeffry Spahr, Norwalk Deputy Corporatin Counsel and Lester Bell, Chairman, Norwalk Conservation Commission.

 

Docket #FIC 94-228                                             Page 6

 

                46.           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 the respondents' records available to the complainant in an effort to settle this case, and to claim that it is unclear what records the complainant is seeking.

 

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

 

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

 

                49.           It is concluded that the respondent deputy corporation counsel's denial of the complainat's requests was without reasonable grounds.

 

                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 the audiotape of the respondent conservation commission'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 respondent'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.             The respondents shall forthwith provide to the complainant a copy of the requested written motion, as described in the findings, above.

 

                4.             The respondents shall forthwith provide to the complainant a copy of the requested invoice, as described in the findings, above.

 

                5.             The respondent deputy corporation counsel shall forthwith remit to the Commission a civil penalty in the amount of $250.00.

 

Docket #FIC 94-228                                             Page 7

 

                6.             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

 

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