FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by |
FINAL DECISION |
||
|
Joseph J. Farricielli and |
|
||
|
|
Complainant |
|
|
|
|
against |
|
Docket #FIC 1999-578 |
|
Environmental Analyst, State of Connecticut, |
|
||
|
|
Respondents |
March 22, 2000 |
|
|
|
|
|
|
The above-captioned matter was heard as a contested case on February 4, 2000 at which time the complainants appeared and presented testimony, exhibits and argument on the complaint, however, the respondent failed to appear.
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. It is found that by letter dated August 26, 1999, complainant Farricielli requested that the respondent provide him with a copy of “the Coastal Area Management Application for the Department of Transportation” (“DOT”) concerning certain work and disposal activity engaged in by the DOT, adjacent to the East River along I-91 North and I-91 South in the vicinity of Exit 5, (hereinafter “requested record”).
3. It is found that by letter dated September 1, 1999, the respondent acknowledged receipt of the request, informed the complainant that the respondent’s files would be searched promptly to locate the requested records, and that the respondent would notify the complainant upon completion of such search.
4. It is found that two months later, having not received a response, the complainant renewed his request to the respondent by letter dated November 2, 1999.
5. It is found that by letter dated November 3, 1999, the respondent acknowledged receipt of the November 2, 1999 renewed request, and requested that the complainant clarify the site “with which you are concerned” or “schedule an appointment with staff to discuss the site(s) and files you are interested in”, in addition to identifying the DEP division or subject matter concerning his request.
6. Having failed to receive the requested record, the complainant, by letter dated November 3, 1999, and postmarked November 30, 1999, appealed to the Commission alleging that the respondent violated the Freedom of Information Act (“FOI”) by denying him a copy of the requested record.
7. Section 1-206(b)(1), G. S., (formerly §1-21i(b)(1), G.S.) provides in relevant part:
Any person denied the right to inspect or copy records under section 1-210 … may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial…. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.
8. It is concluded that the complainant’s appeal was filed on November 30, 1999, the date it was postmarked, and was therefore filed within the appropriate thirty-day period, within the meaning of §1-206(b)(1), G. S., (formerly §1-21i(b)(1), G.S.). The Commission therefore has jurisdiction to hear this appeal.
9. Section 1-200(5), G.S., (formerly §1-18a(5), G.S.) defines “public records or files” to mean:
any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
10. Section 1-210(a), G.S., (formerly §1-19(a), G.S.) further provides, in relevant part:
Except 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.
11. It is unclear from the record
whether the respondent maintains the requested application because the
respondent failed to appear at the hearing on this matter, even though the
respondent received notice of the hearing, as evidenced by the signed return
receipt indicating delivery of the Commission’s Notice of Hearing.
12. However, if the
requested application exists and is maintained by the respondent, such
application is a public record within the meaning of §§1-200(5),
G.S., (formerly §1-18a(5), G.S.) and 1-210(a), G.S., (formerly §1-19(a),
G.S.).
13. It is concluded that the
respondent failed to prove that the application, if it exists, is exempt from
disclosure pursuant to any federal law or state statute, within the meaning of
§1-210(a), G.S., (formerly §1-19(a),
G.S.)
14. Consequently, it is further
concluded that if the application exists, the respondent violated §1-210(a),
G.S., (formerly §1-19(a),
G.S.), when he failed to promptly provide the complainant with a copy of such
application.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall provide the complainant with a copy of the requested application, if it exists, without charge.
2. If no application exists, the respondent shall forthwith so inform the complainant in a written affidavit attesting to that fact.
3. The Commission shall forthwith notify the Commissioner of the Department of Environmental Protection (“DEP”) of this matter, in an attempt to ensure that the DEP considers taking whatever action is necessary for a more responsive handling of future requests for public records. The DEP’s failure to timely provide the requested application to the complainant or to timely inform the complainant that no application exists, is troubling. Furthermore, the DEP’s failure to appear at the FOI Commission’s scheduled hearing appears to suggest that the DEP’s internal mechanism for handling FOI matters needs to be reviewed.
Approved by Order of the Freedom of Information Commission at its regular meeting of
March 22, 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:
Joseph J. Farricielli and Look Investment Agency
PO Box 1065
Branford, CT 06405
Environmental Analyst, State of Connecticut, Department of Environmental Protection,
Office of Long Island Sound Programs
c/o Atty. Matthew I. Levine
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
__________________________
Melanie R. Balfour
FIC1999-578FD/mrb/03/28/00