FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Friends of Animals, Inc., and Animal
Rights Front,

 

Complainant

 

 

against

 

 Docket #FIC 1999-543

Paul W. Rego, Wildlife Biologist,
State of Connecticut, Department
of Environmental Protection,
Wildlife Division, Sessions Woods
Wildlife Management Area,

 

 

Respondents

May 10, 2000

 

 

 

 

     The above-captioned matter was heard as a contested case on February 15, 2000, at which time the complainants and the respondent appeared, 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 Department of Environmental Protection [hereinafter “the department”] 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 October 15, 1999, the complainants asked to inspect:

 

a.  “[a]ll necropcies, studies, surveys, biological data, and reports derived from animals or parts thereof, taken or harvested on State-owned and State-controlled land pursuant to permits issued under the ‘invitation for Bids’ concerning sale of permits for trapping live animals on State-owned and/or State-controlled land since 1973.” 

 

b.  “[e]ach  original ‘Invitation for Bids’ concerning sale of permits for trapping live animals on State of Connecticut owned land and/or State of Connecticut controlled land issued by the State of Connecticut or any agency of the State of Connecticut since 1973.”    

 

c.  “[c]opies of all documents, reports, memorandum, notes, and drafts concerning any and all costs incurred by the Department of Environmental Protection, or any other agency of the State, related to the creation, implementation, and administration of the ‘Invitation for Bids’ concerning sale of permits for trapping, live animals on State of Connecticut owned land and/or State of Connecticut controlled land.”

 

It is further found that, by such letter, the complainants also requested:

 

d. “[c]opies of all individual Trapper’s Reports concerning animals taken on State-owned and State-controlled land pursuant to permits issued under the ‘Invitation for Bids’ concerning sale of permits for trapping live animals on State-owned and or State-controlled land submitted since 1973.  In so far as Conn. Gen. Stat. Sec. 26-67a may require, identifying information may be redacted from these reports.”

 

e.   “[c]opies of all summaries created by the Department of Environmental Protection concerning all animals taken or harvested on State-owned and State-controlled land pursuant to permits issued under the ‘Invitation for Bids’ concerning sale of permits for trapping live animals on State-owned and/or State-controlled land since 1973.”

 

f.  “[c]opies of all documents, recordings, memorandum, and summaries created by or received by the Connecticut Department of Environmental Protection concerning complaints of nuisance due to fur-bearing animals in the state of Connecticut since 1994.”

 

g.  “[c]opies of all documents, reports, summaries, memorandum, studies and field studies concerning the population and/or health of fur-bearing animals on properties identified in ‘Invitation for Bids’ concerning sale of permits for trapping live animals on State of Connecticut owned land and/or State of Connecticut controlled land since 1994.” 

 

h.   “[c]opies of all documents, reports, memorandum, notes, and drafts, created prior to September 19, 1999, concerning the participation of animal rights activists, animal rights groups, or anti-trappers in the ‘Invitation for Bids’ concerning sale of permits for trapping live animals on State-owned and/or State-controlled land.”

 

i.   “[c]opies of all documents, reports, memorandum, notes, and drafts, created prior to September 19, 1999, concerning the provision in the ‘Invitation to Bid For A Permit To Trap On State-Owned Land’, issued on or about August 12, 1999, which requires ‘proof that the bidder has harvested fur-bearing animals during at least four trapping seasons’.”  

 

3.     It is found that, by letter dated October 19, 1999, the respondent acknowledged his receipt of the letter described in paragraph 2, above, on October 18, 1999, and informed the complainants that the department would review its files in order to locate requested records and redact privileged information, that such review would be completed as promptly as possible, and that the complainants would be notified of completion of the review. 

 

                4.  Having failed to receive access to and copies of the records described in paragraph 2, above, by appeal dated November 19, 1999, and filed with the Commission on November 22, 1999, the complainants alleged that the respondent thereby violated the Freedom of Information [hereinafter “FOI”] Act.  The complainants requested that the inspection and copies requested as described in paragraph 2, above, be ordered, that civil penalties be imposed against upon the respondent, and that the department be made to pay attorneys’ fees and costs incurred by the complainants. 

 

                5.  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

 

    6.  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.  The fee for any copy provided in accordance with the [FOI] Act…shall not exceed twenty-five cents per page.…

 

                7.  It is found that the requested records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

 

                8.  It is found that compliance with the request described in paragraph 2, above, required that the respondent contact approximately a dozen employees of the department who are located in several different offices across the state, and that such employees search through records spanning up to twenty-six years for records requested in paragraphs 2.a, 2.b, 2.d, and 2.e, above, and spanning up to six years for records requested in paragraphs 2.f and 2.g, above.  It is further found that the requested records, once assembled and as described in paragraph 9, below, comprised thousands of pages. 

 

                9.  It is found that, by letter dated November 29, 1999, the director of the department’s Wildlife Division further responded to the request described in paragraph 2, above, by informing the complainants that many of the requested records are in storage facilities and that the search for all such records would be time-consuming.  It is further found that the department specifically responded to such request as follows:

 

a.  with respect to the request described in paragraph 2.a, above, the department informed the complainants that, for many years the department has collected carcasses but that its records do not indicate whether such animals were taken on private or public land; that the more recent records would be available within a week or two but that considerable time would be needed to locate the older records;

 

b. with respect to the request described in paragraph 2.b, above, the complainants were informed that the original ‘Invitations for Bid’ are kept by the Department of Administrative Services, but that the department maintains some copies of such records although not going back as far as 1973;

 

c.  with respect to the requested records described in paragraph 2.c, above, the complainants were informed that no such records exist;

 

d.  with respect to the request described in paragraph 2.d, above, the complainants were informed that approximately 2990 individual reports were submitted since 1973, that §26-67a, G.S., exempts information contained therein, that such records would have to be redacted so as to delete such exempt records, that many of the older records were in storage facilities; that the cost of copying such records would amount to $747.50 (2990 multiplied by 25 cents per page); and that the department would begin copying such records upon payment;

 

e.  with respect to the request described in paragraph 2.e, above, the complainants were informed that 78 pages of documents had been assembled and that such copies would be provided upon payment of the statutory fee of $19.50 (78 multiplied by 25 cents per page);  

 

f.  with respect to the request described in paragraph 2.f, above, the complainants were informed that there are several thousand responsive copies, including copies of Nuisance Wildlife Control Operator reports, Conservation logs, and wildlife biologists’ notes and reports, that it would take some time to compile such records; and that the complainants would be contacted with a final page count.

 

g.  with respect to the request described in paragraph 2.g, above, the complainants were informed that responsive records numbered approximately 100 pages, that the cost for such copies was $25.00 (100 multiplied by 25 cents per page), and that such copies would be provided upon payment;

 

h.  with respect to the request described in paragraph 2.h, above, the complainants were informed that responsive records numbered 5 pages, that the cost for such copies was $1.25 (5 multiplied by 25 cents per page), and that such copies would be provided upon payment;

 

i.  with respect to the request described in paragraph 2.i., above, the complainants were informed that responsive records numbered 10 pages, that the cost for such copies was $2.50 (10 multiplied by 25 cents per page), and that such copies would be provided upon payment.

 

                10.  It is found that, by letter dated December 16, 1999, the complainants responded to the letter described in paragraph 9, above, by enclosing a check in the amount of $48.25 for the copies identified in paragraphs 9.e, 9.g, 9.h, and 9.i, above, and requested that they be allowed to inspect the records described in paragraphs 9.d and 9.f, above, so as to avoid the copying costs described therein. 

 

                11.  It is found that, by letter dated January 5, 2000, an assistant attorney general, acting on behalf of the respondent, responded to the letter described in paragraph 10, above, informing the complainants that the copies described in paragraphs 9.e, 9.g, 9.h, and 9.i, above, would be provided shortly.  It is further found that such letter references a December 22, 1999, agreement with the complainants whereby the department would provide summaries of the 2990 reports described in paragraph 9.d, above, in lieu of such reports, since such reports contain information exempt by virtue of §26-67a, G.S., and whereby the complainants would review such summaries and narrow the request described in paragraph 2.d, above.  It is also found that such letter indicates that such summaries had been provided to the complainants and that the department awaited the complainants’ reply. 

 

                12.  It is found that, at the hearing in this matter, the complainants did not dispute the facts indicated in the January 5, 2000, letter, described in paragraph 11, above, nor did they dispute that the requested records described in paragraph 2.d, above, contain confidential information exempt from disclosure by virtue of §26-67a, G.S.   

 

                13.  It is found that, by letter dated January 7, 2000, the department provided the complainants with the copies described in paragraphs 9.e, 9.g, 9.h, and 9.i, above, informed the complainants that other records responsive to such requests might be in existence outside the wildlife division, and that the department would conduct a further search for any such records and forward any such records to the complainants.    

 

                14.  It is found that on or about January 14, 2000, the department made available for inspection all requested records.  It is further found that by letter dated January 19, 2000, the attorney general, acting on behalf of the respondent, reiterated this fact, and the fact that such inspection could be arranged by contacting the respondent directly.

 

                15.   Finally, it is found that, by letter dated February 7, 2000, the department provided the complainants with 21 pages of additional records responsive to paragraphs 9.e, 9.g, 9.h, and/or 9.i, above, at no cost, and that such records were located outside the wildlife division. 

 

                16.  At the hearing in this matter, the complainants contended that the FOI Act requires compliance within four business days.  However, it is concluded that such contention is incorrect and that the FOI Act requires prompt compliance as determined under the circumstances, pursuant to §1-210(a), G.S. [formerly §1-19(a), G.S.].     

 

                17.  It is also concluded that promptness is a standard which depends on the particular facts and circumstances surrounding a request. 

 

                18.  It is found that, under the unique facts and circumstances of this case, the respondent complied with the request described in paragraph 2, above, by virtue of the letter described in paragraph 9, above, and that the communication thereafter between the parties was necessary to effect such compliance. 

 

                19.  It is therefore concluded, based upon the facts and circumstances of this case, that compliance was prompt within the meaning of the §1-210(a), G.S. [formerly §1-19(a), G.S.], and that the respondent did not violate the promptness provision of the FOI Act, as alleged in the complaint. 

 

    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

May 10, 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:

 

 

Friends of Animals, Inc., and

Animal Rights Front

c/o Fatima Lobo, Esq.

Beck & Eldergill, P.C.

447 Center Street

Manchester, CT  06040

 

Paul W. Rego, Wildlife Biologist,

State of Connecticut, Department of

Environmental Protection, Wildlife

Division, Sessions Woods Wildlife

Management Area

c/o Gail S. Shane, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT  06141-0120

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC1999-543FD/mes/05/11/00