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FREEDOM OF INFORMATION
COMMISSION |
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In the Matter of a Complaint by |
FINAL DECISION |
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Marie
Iadarola Fadus, |
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Complainants |
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against |
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Docket #FIC 1999-105 |
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James
McGaughey, Director, State of Connecticut, Office of Protection and Advocacy
for Persons with Disabilities, |
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Respondent |
September 22, 1999 |
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The above-captioned matter was heard
as a contested case on June 24 and August 5, 1999, at which times 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 §1-200(1), G.S. [formerly §1-18a(1), G.S.].
2. By letter
to the respondent dated December 19, 1998 (hereinafter “December 1998
request”), the complainant requested copies of the following twelve categories
of documents:
a. any and
all enabling legislation, court decisions, executive directives from the
Governor’s Office, or opinions of the Attorney General’s office or other State
agencies allowing the Office of Protection and Advocacy (hereinafter “P&A”)
to outsource the provision of self-advocacy services for Connecticut residents;
b. any and
all requests for proposal, bids, or solicitations to provide self-advocacy
services for Connecticut’s disabled and mentally retarded citizens through
P&A;
c. any and
all responses to and correspondence regarding such requests, bids, or
solicitations from all vendors and contractors, including but not limited to
WeCahr, People First and their competitors or other agencies providing similar
services;
d. any and
all documentation justifying the business decision of P&A to select WeCahr
over other vendors or contractors;
e. any and
all evaluations of WeCahr and its competitors performed by or under the
auspices of P&A, including but not limited to background checks of the
contractors and their principals, owners, directors, officers and employees.
f. any and
all documentation regarding the qualifications of WeCahr to provide services to
P&A, including but not limited to the qualifications of employees;
g. any and
all contracts between P&A and WeCahr and/or People First, including but not
limited to pricing, scope of services, and the names addresses, and phone
numbers of its principals, owners, directors, officers and employees;
h. any and
all documentation regarding the corporate structure of WeCahr and/or People
First, including but not limited to financial disclosures, corporate hierarchy,
place of incorporation, and contract information regarding affiliates, joint
venturers, or other agencies or people having a financial interest in WeCahr
and/or People First;
i. the
names, street addresses, city, state, ZIP code, and telephone numbers of all
contractors who build, own, operate, manage, or administer group homes in
Connecticut, including the names, addressees and telephone numbers of such
contractors’ principals, owners, directors, officers, and employees;
j. any and
all documentation regarding the funding of WeCahr and other contractors working
for P&A in a similar capacity;
k. any and
all documentation arising from reviews, evaluations, or audits of WeCahr and
other contractors working for P&A in a similar capacity; and
l. any and
all documentation of complaints or grievances filed against WeCahr and its
principals, owners, directors, officers, or employees or against other
contractors working for P&A in a similar capacity.
3. By letter
to the complainant dated December 24, 1998, on behalf of the respondent, an
Attorney Berliner responded to the complainant’s request, provided certain
records in response to the request and informed the complainant that for
certain categories requested, P&A did not maintain any responsive records
(hereinafter “December response”).
4. By letter
to the respondent dated February 5, 1999 (hereinafter “February 1999 request”),
the complainant renewed her request for records described in paragraph 2,
above, claiming that the respondent had not fully responded to such request,
and requested the following seven additional categories of records:
a. a copy of
all state directives, guidelines, and/or policies required to be used by state
agencies in soliciting, selecting, funding, auditing and evaluating contractors
such as WeCahr and its affiliated and associated entities;
b. a copy of
all state directives, guidelines, and/or policies regarding conflicts of
interests and evaluations and decisions regarding conflicts of interest in
soliciting, selecting, contracting with, auditing, evaluating, and/or funding
contractors, including but not limited to those that provided advocacy services
or residential services to the mentally handicapped in Connecticut;
c. a copy of
any and all signed contracts for services between WeCahr and P&A during
fiscal years July 1, 1996 through June 30, 1997, and July 1, 1997 through June
30, 1998;
d. copies of
all completed standard consent forms or other evidence that the residents of
Southbury Training School (hereinafter “STS”) gave informed consent to belong
to WeCahr and/or People First, Inc./and or to donate or expend personal funds
in connection with such entities;
e. copies of
minutes of all meetings at P&A during which WeCahr, People First, The
Arc/Connecticut and the STS advocacy project were discussed, and any memoranda
or letters, advisory opinions, recommendations or reports comprising part of
the process by which P&A decisions are and were formulated with regard to
the provision of services through WeCahr, People First, The Arc/Connecticut or
similar entities;
f. a copy of
WeCahr’s budget for the fiscal year ending June 30, 1999; and
g. a copy of
all schedules for all payments, disbursements, or funding commitments to all
P&A contractors for all fiscal years between July 1, 1993 through June 30,
1999.
5. By letter
to the complainant dated February 19, 1999, Attorney Berliner responded to the
complainant’s February request, and informed the complainant that the
respondent needed an additional thirty days to provide a more substantive
response to such request (hereinafter “February response”).
6. By letter
dated March 1, 1999 and filed March 5, 1999, the complainant appealed to the Commission
alleging that the respondent had not complied fully with her requests and
seeking the imposition of civil penalties against the respondent.
7. It is
found that to the extent the respondent maintains records that are responsive
to the complainant’s request, such records are public records within the
meaning of §§1-200(5) and 1-210(a)
[formerly §§1-18a(5) and 1-19(a), G.S.].
8. Section
1-210(a), G.S., [formerly §1-19(a), G.S.] provides in
relevant part that:
Except as otherwise provided by any federal law or
state statute, all records maintained or kept on file by any public
agency…shall be public records and every person shall have the right to inspect
such records promptly during regular office or business hours or to receive a
copy of such records in accordance with the provisions of section 1-212.
9. Section
1-212(a), G.S. [formerly §1-15(a), G.S.], in turn
provides in relevant part, that “any person applying in writing shall receive,
promptly upon request, a plain or certified copy of any public record.”
10. It is
found that after some additional correspondence between the complainant and
representatives of the respondent’s staff over the telephone and in writing,
the complainant visited the offices of the respondent on March 4, 1999
(hereinafter “March visit”), along with two of her sons, and was provided with
access to roughly 1,000 pages of records that the respondent had compiled as
responsive to the complainant’s February 1999 request, although there were many
duplicate records. The complainant
asked the respondent to provide copies of 108 records, after reviewing all of
the records made available, for which she paid the appropriate statutory
fee.
11. At the
hearing on this matter, the complainant indicated that she remained
dissatisfied with the respondent’s provision of records following her March
visit to the respondent’s offices and that she believed other records existed
or should exist that had not been provided to her.
12. The
respondent contends that all records responsive to the complainant’s requests
have been provided to the complainant and that the complainant has been
informed as to which records are not maintained by the respondent’s office.
13. With
respect to the complainant’s December 1998 request, as described in paragraphs
2f, 2h, 2i and 2l, above, it is found that the respondent is not required to
maintain and does not maintain any records responsive to such requests, and
that the respondent so advised the complainant in his December response,
thereafter in response to the complainant’s February 1999 request, and again at
the hearing on this matter.
14. With
respect to the February 1999 request, as described in paragraphs 4d and 4e,
above, it is found that the respondent is not required to maintain and does not
maintain any records responsive to such requests, and that the respondent so
advised the complainant at the hearing on this matter.
15. With
respect to the requested records, as described in paragraph 2a, above, it is
found that the respondent provided the complainant with a copy of P&A’s
enabling legislation with the December response letter, and that the respondent
does not maintain any other records that are responsive to such request.
16. With
respect to the requested records, as described in paragraph 2b, above, it is
found that the respondent provided the complainant with a copy of the blank
request for proposals for the 1997 STS advocacy project with the December
response letter. The complainant
indicated in her February 1999 request that she wanted copies of all requests
for proposals issued by P&A with respect to the STS advocacy project since
1988. The respondent provided access to
such records during the complainant’s March visit to the respondent’s offices.
17. With
respect to the requested records, as described in paragraph 2c, above, it is
found that the respondent provided the complainant with several records with
the December response and that the respondent does not maintain any other
records responsive to such request.
18. With
respect to the requested records, as described in paragraph 2d, above, it is
found that the respondent provided the complainant with a copy of P&A’s
1998 contract with WeCahr containing the business decision for selecting
WeCahr, with the December response; and during the complainant’s March visit to
the respondent’s offices, the respondent provided access to, and a copy of,
P&A’s 1997 letter awarding the contract to WeCahr along with a request for
waiver from competitive bidding. The
respondent does not maintain any other records responsive to such request.
19. With
respect to the requested records, as described in paragraph 2e, above, it is
found that the respondent informed the complainant in his December response
that P&A did not maintain any evaluations of WeCahr or its competitors, but
that after the complainant’s February 1999 request, it became clear that the
complainant was seeking monthly activity reports which WeCahr is required to
submit to P&A pursuant to the contract.
The respondent made the monthly activity reports (consisting of several
hundred pages) available to the complainant, with the identities of clients
redacted, during her March visit to the respondent’s offices. The respondent does not maintain any other
records responsive to such request.
20. With
respect to the requested records, as described in paragraph 2g, above, it is
found that the respondent provided the complainant with the 1998 contract
between P&A and WeCahr, with his December response. However, the complainant indicated in her
February 1999 request, that she wanted all contracts with WeCahr, not only the
current one, which contracts the respondent made available to the complainant
during her March visit to the respondent’s offices. At the hearing on this matter, the respondent agreed to provide
the complainant with a copy of P&A’s initial contract with WeCahr, because
the complainant could not recall viewing it during her March visit to the
respondent’s offices.
21. With
respect to the requested records, as described in paragraph 2j, above, it is
found that the respondent provided the complainant with a copy of an August
1997 contract between P&A and WeCahr and WeCahr’s November 1997
application, containing funding information for the fiscal years covered by
such records, with his December response.
The respondent also provided with his December response, a copy of a
November 1998 contract between P&A and Advocacy Unlimited. The respondent does not maintain any other
records responsive to such request.
22. With
respect to the requested records, as described in paragraph 2k, above, it is
found that the respondent provided the complainant with a copy of a September
1998 audit submitted by WeCahr to P&A, as required under its current
contract with P&A, with the respondent’s December response. The respondent does not maintain any other
records responsive to such request.
23. With
respect to the complainant’s February 1999 request, as described in paragraph
4a, above, it is found that the respondent provided the complainant with
P&A’s guidelines regarding selection of contractors, during the
complainant’s March visit to the respondent’s offices. The respondent does not maintain any other
records responsive to such request.
24. With
respect to the complainant’s request, as described in paragraph 4b, above, it
is found that the respondent provided the complainant with a copy of the
Connecticut General Statutes governing the Code of Ethics in Connecticut during
the complainant’s March visit to the respondent’s offices. The respondent does not maintain any other
records responsive to such request.
25. With
respect to the complainant’s request, as described in paragraph 4c, above, it
is found that the respondent provided the complainant with access to such
contracts during the complainant’s March visit to the respondent’s
offices.
26. With
respect to the complainant’s request, as described in paragraph 4f, above, the
complainant withdrew such request at the hearing on this matter.
27. With
respect to the complainant’s request, as described in paragraph 4g, above, it
is found that the respondent interpreted the complainant’s request as only
pertaining to WeCahr, the entity the complainant was most interested in, since
to interpret it otherwise would have encompassed thousands of documents
detailing every transaction undergone by P&A; the respondent therefore
provided the complainant with access to such records relating to WeCahr during
the complainant’s March visit to the respondent’s offices. At the hearing on this matter, the
respondent indicated his willingness to provide the complainant with a list of
all contractors with whom P&A does business and the complainant indicated
that she would select from the list which contractors she was interested in,
other than WeCahr, and would then request copies of such records from the
respondent.
28. At the
hearing on this matter, the respondent acknowledged the delay in responding to
the complainant’s February 1999 request, but stated that such delay was due to
the voluminous nature of the complainant’s request, that the additional records
which were responsive to such request were located in several offices and had
to be culled and brought together, and that due to the confidentiality
provisions of P&A’s enabling statute, members of the respondent’s staff had
to make necessary and time-consuming redactions to many of the documents, prior
to providing access to the complainant.
29. The
complainant contends that the delay was inappropriate and that it is incredible
that the respondent does not maintain more records that are responsive to her
request, specifically records concerning the background of contractors such as
WeCahr that are paid significantly by P&A to perform advocacy services.
30. With
respect to the issue of the confidentiality of certain P&A records, §46a-11c, G.S., requires in
part that “[a]ll client records shall be kept confidential by said office [of
protection and advocacy].”
31. It is
found that the redactions made by the respondent, as described in paragraph 19,
above, were appropriate pursuant to the provisions of §46a-11c, G.S.
32. It is
further found that the respondent’s interpretation of the complainant’s request
as pertaining only to WeCahr and described in paragraph 27, above, was
reasonable under the facts and circumstances of this case.
33. It is
further found that the respondent has provided the complainant with all records
in his possession that are responsive to the complainant’s December 1998
request, as well as to her February 1999 request. Although the Commission recognizes the complainant’s concerns and
frustrations, as described in paragraph 28, above, the Commission lacks
jurisdiction to compel public agencies to maintain the specific additional
records sought by the complainant.
34. It is
finally found that the respondent’s provision of copies and access to public
records maintained by him in response to the complainant’s December 1998 and
February 1999 requests were prompt in this case, given the facts and
circumstances, as articulated by the respondent and described in paragraph 28,
above.
35. It is
therefore concluded that the respondent did not violate the provisions of §§1-210(a) and 1-212(a), G.S.
[formerly §§1-19(a) and 1-15(a), G.S.,
respectively] under the facts and circumstances of this case.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September
22, 1999.
_________________________
Melanie
R. Balfour
Acting
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:
Marie
Iadarola Fadus
c/o
Michael J. Fadus
8
Broad Street, Unit 82
Meriden,
CT 06450
James
McGauhey, Director, State of
Connecticut,
Office of Protection and
Advocacy
for Persons with Disabilities
c/o
Assistant Attorney General Eliot D. Prescott
P.O.
Box 120
Hartford,
CT 06141-0120
__________________________
Melanie
R. Balfour
Acting
Clerk of the Commission
FIC1999-105/FD/mes/09231999