FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

M. Jeffry Spahr,

 

                                Complainant

 

                against                   Docket #FIC 95-67

 

State of Connecticut, Freedomof Information Commission,

 

                                Respondent                          January 24, 1996

 

                The above-captioned matter was heard as a contested case on November 15, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Docket #FIC 95-71, M. Jeffry Spahr v. State of Connecticut, Freedom of Information Commission, was consolidated with the above-captioned matter for purpose of hearing.

 

                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 March 16, 1995 and filed (via facsimile) on March 17, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by failing to respond to his March 8 and 9, 1995 requests for records within four days.  At the hearing into this matter, the complainant further alleged that the respondent failed to respond to certain of his requests, as described in paragraphs 5 through 8, inclusive, below.

 

                3.  It is concluded that pursuant to the provisions of 1-21i, G.S., the Commission has jurisdiction to hear this appeal.

 

                4.  It is found that the complainant made four separate requests of the respondent, as described in paragraphs 5 through 8, inclusive, below.

 

                5.  By letter dated March 8, 1995 the complainant requested that the respondent provide him with a copy of the hearing tape in docket #FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission, and enclosed two blank tapes with his request.

 

Docket #FIC 95-67                                          Page 2

 

                6.  By letter dated March 8, 1995 the complainant requested that the respondent provide him with a copy of:

 

                                i) the respondent's policy regarding the duplication of audio cassette tapes;

 

                                ii) a list of all the parties requesting duplicate audio cassette tapes for the years 1994 and 1995;

 

                                iii) a list of all those indicated in ii) above, who were provided with such tapes; and

 

                                iv) a list of all parties who were provided with tapes without first being required to provide the respondent with blank tapes.

 

                7.  By letter dated March 9, 1995 the complainant requested that the respondent provide him with:

 

                                i)  a list or accounting of all tapes currently held by the respondent including names, dates and case numbers;

 

                                ii)  a list or accounting of all meeting or hearing minutes including names, dates, and case numbers; and

 

                                iii)  a list or accounting of all the documents or records held by the respondent.

 

                8.  By letter dated March 9, 1995, the complainant requested that the respondent provide him with the following records in connection with docket #s FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission; FIC-138, Lloyd Crossland v. Norwalk Conservation Commission; FIC 94-146, Lloyd Crossland v. M. Jeffry Spahr, Norwalk Deputy Corporation Counsel and Lester Bell, Norwalk Conservation Commission; and FIC 94-228, Lloyd Crossland v. Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.

 

                                i) copies of all documents, records, memoranda, reports or any other record including personal notes in the possession of or available to commissioner Berman, attorneys Perpetua, Pearlman, Wassel-Nasto and the respondent;

 

                                ii) a list or catalog of all records requested in i) above, being refused;

 

Docket #FIC 95-67                                               Page 3

 

                                iii) a list or inventory of all requested records that once existed but no longer exist.

 

                9.  It is found that the respondent received all four requests, described in paragraphs 5 through 8, inclusive, above on March 13, 1995.

 

                10.  The Commission takes administrative notice of the record and decision in Docket #sFIC 95-71, M. Jeffry Spahr v. State of Connecticut, Freedom of Information Commission; FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission; FIC 94-138, Lloyd Crossland v. Norwalk Conservation Commission; FIC 94-146, Lloyd Crossland v. M. Jeffry Spahr, Norwalk Deputy Corporation Counsel and Lester Bell, Norwalk Conservation Commission; and FIC 94-228, Lloyd Crossland v. Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.

 

                11.  With respect to the March 8 request, as described in paragraph 5, above, it is found that the respondent by letter dated March 14, 1995 provided the complainant with a copy of the portion of the tape which fit on the blank tapes he had provided and indicated that two additional tapes were needed in order to complete the copies requested.

 

                12.  It is concluded that the March 14, 1995 response was made within four business days of the receipt of the request and therefore does not violate 1-21i(a), G.S.

 

                13.  With respect to the March 8 request, as described in paragraph 6, sub-paragraphs i), ii), iii) and iv), above, it is found that the respondent by letter dated March 17, 1995 informed the complainant that it did not have a written policy on duplicating tapes and did not maintain a list of parties requesting tapes.

 

                14.  It is concluded that the March 17, 1995 response was made within four business days of the receipt of the request and therefore does not violate 1-21i(a), G.S.

 

                15.  With respect to the March 9 request, as described in paragraph 7, sub-paragraphs i), ii) and iii), above, it is found that the respondent in the March 17, 1995 letter, described in paragraph 13, above, informed the complainant that a tape list comprising 34 pages existed and would be made available upon prepayment of $8.50; 2080 pages of minutes existed and would be made available upon prepayment of $520.00; and that no document existed which listed all the documents held by the respondent.

 

                16.  It is concluded that the March 17, 1995 response described in paragraphs 13 and 15, above, was made within four business days of the receipt of the request and therefore does not violate 1-21i(a), G.S.

 

Docket #FIC 95-67                                               Page 4

 

                17.  With respect to the March 9 request, as described in paragraph 8, sub-paragraphs i), ii) and iii), above, it is found that the respondent in the March 17, 1995 letter, described in paragraph 13, above, informed the complainant that 405 pages of documents existed in its files responsive to the request concerning commissioner Berman and the respondent, and upon prepayment of $101.25 copies would be provided; that 61 pages of documents existed concerning attorney Perpetua and upon prepayment of $15.25 copies would be provided; and that no documents existed which were responsive to the request concerning attorneys Pearlman and Wassel-Nasto.

 

                18.  It is concluded that the March 17, 1995 response as described in paragraph 17, above, was made within four business days of the receipt of the request and therefore does not violate 1-21i(a), G.S.

 

                19.  The complainant contends that the respondent failed to respond to his specific request for records "in the possession of or available to commissioner Berman"; that the respondent's March 17 response, described in paragraph 17, above, was non-responsive to his request for records concerning Commissioner Berman; that the response prevented him from ascertaining whether commissioner Berman had records including notes, and whether such records existed; that the respondent ought to have known he was not requesting documents in its files which he was already in possession of; that the respondent failed to provide him with a response to his request as described in paragraph 8, subparagraphs ii) and iii) pertaining to records being refused, and records which once existed but no longer existed, respectively.

 

                20.  At the hearing into this matter the complainant indicated that he was no longer contesting certain allegations he had raised initially in his complaint and limited his complaint to the following as the only outstanding issues to be resolved with respect to this appeal:

 

                                i) that the respondent failed to provide him with a response to his March 8 request, as described in paragraph 6, sub-paragraphs iii) and iv);

 

                                ii) that the respondent failed to provide him with a response to his request for records in the possession of or available to commissioner Berman and failed to provide him with commissioner Berman's notes.

 

                                iii) that the respondent failed to provide him with a list or accounting of minutes as requested and described in paragraph 7, subparagraph ii); and

 

Docket #FIC 95-67                                               Page 5

 

                                iv) that the respondent requested prepayment for a fee of $8.50.

 

                21.  With respect to the allegation as described in paragraph 20, subparagraph i), above, it is found that the respondent's March 17, 1995 response, as described in paragraph 17, above, indicates that "the Commission does not maintain a list of parties requesting cassette tapes"; that the respondent does not maintain either a list of parties requesting tapes or provided with tapes; that the respondent's response is unresponsive to the portion of the request for a list of parties provided with tapes, as such request is described in paragraph 6, sub-paragraph iv), above.

 

                22.  With respect to the allegation as described in paragraph 20, subparagraph ii), above, it is found that the complainant requested all records "in the possession of or available to" commissioner Berman; that the complainant's request as written separates his request for records of commissioner Berman from his request for records of the respondent; that the respondent's March 17, 1995 response, described in paragraph 17, above, lumps together records in the possession of and available to both commissioner Berman and the respondent; that in light of the complainant's separate request, the response is ambiguous as to whether records, if any, are in the possession of and available to commissioner Berman, separate and apart from records that are in the possession of and available to the respondent; that the complainant's request for records of Commissioner Berman was a request for all records including notes and not limited to notes and therefore, the response which is not limited to notes is responsive to the request for all records.

 

                23.  With respect to the allegation as described in paragraph 20, subparagraph iii), above, pertaining to a list or accounting of minutes, it is found that no list of minutes exists; and that the March 17, 1995 response (described in paragraph 17 above) providing access to the minutes themselves is responsive to the request for an accounting of minutes.

 

                24.  With respect to the allegation as described in paragraph 20, subparagraph iv), above, regarding prepayment of of $8.50, it is found that the respondent requested prepayment of a total fee of $528.50, a portion of which represented a copy fee of $8.50 for a list of all tapes currently maintained by the respondent.

 

                25.  It is concluded that the request for prepayment did not violate 1-15(c), G.S.

 

                26.  It is concluded that the respondent violated the complainant's rights under the FOI Act by failing to respond to

 

Docket #FIC 95-67                                               Page 6

 

his request for a list of parties provided with tapes, as such request is described in paragraph 6, sub-paragraph iv), above.

 

                27.  It is concluded that the respondent did not violate the complainant's rights under the FOI Act with respect to the allegations as described in paragraph 20, sub-paragraphs ii), iii) and iv).

 

                28.  Both the respondent's and the complainant's requests for the imposition of a civil penalty are denied.  It is apparent that a mutual attempt to better communicate, and follow-up by the parties could have avoided this complaint.

 

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

 

                1.  The respondent shall immediately provide the complainant with a written response that no list of parties provided with tapes exists.

 

                2.  In light of finding 22 regarding the ambiguity of the respondent's March 17, 1995 response with respect to the request for records "in the possession of or available to" Commissioner Berman, the respondent shall immediately provide the complainant with a more precisely worded response indicating whether records exist which are in the possession of or available to Commissioner Berman, separate and apart from records which are in the possession of or maintained by the respondent, such response to include whether notes of Commissioner Berman a) existed at the date of his request b) at present.

 

                3.  The complaint is dismissed with respect to the allegations as described in paragraph 20, sub-paragraphs ii), iii) and iv), of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-67                                               Page 7

 

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:

M. Jeffry Spahr, Esq.

Deputy Corporation Counsel

Norwalk Law Department

City Hall,

P. O. Box 798

Norwalk, CT 06856-0798

 

State of Connecticut, Freedom of Information Commission

18-20 Trinity Street

Hartford, CT 06106

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission