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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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Diane
Sivo, |
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Complainants |
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against |
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Docket
#FIC 1999-260 |
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Comptroller,
Town of Brookfield; |
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Respondents |
January
26, 2000 |
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The above-captioned matter was heard as a contested
case on November 1, 1999, at which time the complainant and the respondents
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 respondents are public agencies within the meaning of §1-200(1),
G.S. [formerly §1-18a(1),
G.S.].
2.
Between December 1998 and late January 1999 the complainant’s attorney and
the respondents exchanged a series of correspondence concerning certain
requests by the complainant for attorney bills submitted to the respondent
town. This exchange apparently ended when an Attorney Bennett
responded to the complainant’s attorney that he needed to identify in what
capacity he was requesting such information (e.g. taxpayer, community activist
or attorney) and provide a more specific statement as to what he was
interested in obtaining.
3. Thereafter, by letter dated April 27, 1999 to the respondent
comptroller, the complainant requested copies of:
a.
“any and all [r]etainer
[a]greements, or memorandum of understanding concerning scope of work, fees,
methods of billing for the period of time from January 1, 1995 to the present,
by and between the Town of Brookfield and any attorney, counselor-at-law,
whether individual or a firm;” and
b. “any bills received by you, any member of your office
or any other person or entity within the Town of Brookfield that would forward
the same to you for approval or payment … , for the period of time from
January 1, 1995 to the present.”
4. By letter dated May 3, 1999, Attorney Bennett responded on
behalf of the respondents, to the complainant’s April 27, 1999 request and
advised the complainant that the Freedom of Information
(“FOI”) Act excluded all “records pertaining to strategy and
negotiations with respect to pending claims and litigation to which the public
agency is a party until such litigation or claim has been finally adjudicated
or otherwise settled.” Attorney
Bennett then informed the complainant that since three civil actions involving
Jason Sivo and the respondent town were pending, her request for information
concerning such matters could not be accommodated. Attorney Bennett also asked the complainant whether she
wanted to review retainer agreements and bills concerning “non-exempt”
matters.
5. By letter dated June 2, 1999 and filed on June 3, 1999, the
complainant appealed to this Commission alleging that the respondents violated
the FOI Act by failing to provide the requested records described in paragraph
3, above.
6. Section 1-210(a), G.S. [formerly §1-19(a), G.S.] provides in
relevant part that
[e]xcept
as otherwise provided by any federal law or state statute, all records
maintained or kept on file by any public agency, whether or not such records
are required by any law or by any rule or regulation, 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.
7. Section
1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny
person applying in writing shall receive, promptly upon request, a plain or
certified copy of any public record . . . .”
8.
It is found that the complainant
was specifically interested in obtaining records concerning the retention of,
and any payments made by the respondent town to, Attorney Bennett, who was
apparently authorized by the respondents to attempt to collect on delinquent
personal property accounts in the respondent town.
9. It is found that to the extent records exist that are
responsive to the complainant’s request, such records are public records
within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
10.
Subsequent to the appeal in this case, by letter dated August 9, 1999,
an Attorney Mix responded to the complainant, on behalf of the respondents,
that the April 27, 1999 request had not been complied with because no records
existed at the time of the request that were responsive to such request.
Attorney Mix advised however, that an accounting statement had been
prepared by Attorney Bennett and submitted to the respondent town on August 5,
1999, which record he enclosed.
11.
After further communication between the complainant’s attorney and
Attorney Mix, Attorney Mix informed the complainant, in a letter dated October
5, 1999, that upon further review of the respondent town’s records, two
additional records had been located: a
February 20, 1998 memorandum from the respondent comptroller to Attorney
Bennett concerning the collection of personal property accounts; and an
accounting summary dated July 1999. Attorney
Mix enclosed copies of the two additional records with his October 5, 1999
letter.
12.
The respondents maintain, and it is found, that other than the three
records described in paragraphs 10 and 11, above, no other records exist that
are responsive to the complainant’s request described in paragraph 2, above.
13.
With respect to the respondents’ provision of the July 1999
accounting summary and the August 5, 1999 accounting statement, it is
concluded that the respondents did not violate the promptness provisions of
§1-212(a), G.S. [formerly §1-15(a), G.S.], since such records did not exist
at the time of the complainant’s April 27, 1999 request.
14.
However, it is further concluded that by failing to locate and provide
the complainant with a copy of the February 20, 1998 memorandum described in
paragraph 10, above, until October 5, 1999, the respondents violated the
promptness provisions of §1-212(a), G.S. [formerly §1-15(a), G.S.].
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
1. Henceforth the respondents shall strictly comply with the promptness provisions of §1-212(a), G.S. [formerly §1-15(a), G.S.].
2. The Commission notes that the facts herein disclose that the
respondents, through their attorney, denied the complainant’s records
requests prior to determining whether records indeed existed. Such a course of conduct clearly is not in keeping with the
spirit and intent of the FOI Act and should be avoided in the future. The
Commission also notes that given what transpired before and after the
initiation of this appeal, this appeal could have been resolved without the
need for the state to expend valuable resources. In this regard, the Commission notes that the parties twice
requested and were granted hearing postponements on the grounds that there was
the likelihood of a settlement.
Approved by Order of the Freedom of Information Commission at its regular meeting of
January 26, 2000.
_________________________
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:
Diane Sivo
c/o Atty. David S. Grossman
304 Federal Road
Brookfield, CT 06804
Comptroller, Town of Brookfield; and Town of Brookfield
c/o Atty. Lawrence J. Mix
57 North Street, Suite 214
Danbury, CT 06810
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-260FD/mrb/01/27/00