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