FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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John Belthoff, |
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Complainant |
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against |
Docket #FIC 2000-472 |
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James Abromaitis,
Commissioner, |
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Respondents |
November 8, 2000 |
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The above-captioned matter was heard as a contested case on September 25, 2000, at which time 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.
2. By electronic mail (hereinafter “e-mail”) dated August 7, 2000, the complainant requested from the respondent copies of thirteen categories of records, most of which concerned the Connecticut Film Video and Media Office and the Connecticut Economic Resource Center. The complainant stated in his letter that he would pay any reasonable copying and postage fees of not more than $25.00 and that if the cost would be greater to please notify him.
3. By reply letter dated August 8, 2000, an intern from the respondent’s office
informed the complainant that the Department of Economic and Community Development (hereinafter “DECD”) was researching his request to determine what records it maintained that were responsive to such request and whether such records would be subject to disclosure. The intern advised that James Heckman from DECD would be in contact with him.
4. On August 17, 2000, the complainant spoke to Mr. Heckman by telephone and later sent an e-mail to Mr. Heckman stating that he understood from their earlier telephone conversation that the records that were responsive to his request would be ready “next week at this time.”
5. By letter dated August 24, 2000 and filed August 25, 2000, the complainant appealed to the Commission alleging that the respondent had not complied with his records request. In addition, the complainant requested the imposition of civil penalties against the respondent.
6. Section 1-210(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 .
7. 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.
8. Section 1-212(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.
9. It is found that: on August 29, 2000 Mr. Heckman telephoned the complainant and left a message on the complainant’s answering machine stating that the information he requested was ready for his review; on August 30, 2000 Mr. Heckman sent the complainant a letter stating again that the information was ready for his review and that the complainant could visit the DECD offices to review and make copies of the requested records; on September 5, 2000, Mr. Heckman sent an e-mail to the complainant reiterating his messages from August 29 and August 30, 2000; and on September 6, 2000 Mr. Heckman sent the complainant another letter stating the same message as all of his prior communications.
10. It is found that the complainant replied to the communications from Mr. Heckman, described in paragraph 9 above, by e-mail on September 12, 2000, wherein he stated that he originally requested that copies of the responsive records be mailed to him and that he was confused as to why the respondent wanted him to appear at the DECD’s offices to review the subject records.
11. It is found that by e-mail on September 14, 2000, Mr. Heckman responded to the complainant’s September 12, 2000 e-mail stating that the records that were responsive to his request were voluminous and that since the complainant had indicated he was only willing to pay a maximum of $25.00, he was attempting to schedule a time for the complainant to review the requested records. Mr. Heckman asked the complainant to contact him to either make an appointment to inspect the records or to inform him that he wished to purchase copies of the records. Mr. Heckman further stated that if the complainant wanted copies of the records, DECD would let him know the cost of such copies; he did not at that time indicate how many records were responsive to the complainant’s request or what the cost of such copies would be.
12. By e-mail dated September 16, 2000, the complainant objected to Mr. Heckman’s request that he make an appointment to inspect the records, requested that DECD forward to him any records that did not require a copying charge and stated that he would appear at the offices of DECD at his convenience to inspect the responsive records.
13. By e-mail dated September 19, 2000, Mr. Heckman stated that all records required a copying charge, there were 808 pages of records responsive to his request and that the cost of copying would be $202.00. Mr. Heckman asked the complainant to advise whether he wanted to inspect all of the records first or whether he wanted to pay for the records in full and have all of the records forwarded to him.
14. It is found that the complainant visited the respondent’s office on September 22, 2000 at approximately one o’clock in the afternoon and was advised by a security guard, after the security guard spoke to a secretary from DECD, that Mr. Heckman was not in the office at that time and that the complainant needed an appointment to inspect records.
15. At the hearing on this matter, the complainant claimed that the respondent had improperly: required him to indicate that he wanted copies before the respondent would tell him how many records were at issue and the cost; tried to charge him for a copy of a guide for which the respondent does not ordinarily charge; tried to require him to make an appointment before permitting access; and denied prompt access to the requested records.
16. It is found that the respondent did not require the complainant to indicate that he wanted copies before telling him the number of responsive records or the cost. Although the respondent could have informed the complainant earlier on how many documents were responsive to his request as well as the cost to provide such copies, the failure to do so was at most an oversight, and was not an attempt to delay compliance or deny the complainant access to the requested records.
17. With respect to the requested DECD guide, it is found that DECD does not usually charge for a copy of such guide. The respondent indicated at the hearing on this matter, that an error had been made with respect to such record and that a copy of the guide would be provided to the complainant free of charge.
18. With respect to the claim that the respondent required the complainant to make an appointment, it is found that the respondent’s policy is to suggest to people who want to inspect DECD records that they make an appointment to do so for the sake of efficiency but that if people do not wish to make an appointment, they do not need one to gain access to public records. The respondent acknowledged that the secretary in this case had erred by advising the complainant that he needed an appointment and that she had done so without the knowledge of the respondent or Mr. Heckman.
19. It is further found that it was reasonable under the circumstances of this case for the respondent to suggest that the complainant visit the DECD’s offices to inspect the records prior to copying, because of the number of records involved and the complainant’s indication that he would be willing to pay no more than $25.00 for the requested records.
20. With respect to the complainant’s issue concerning denial of access to the subject records, it is found that the respondent was prepared to comply with the complainant’s request in totality on August 29, 2000, approximately three weeks from the date of the complainant’s request, an amount of time that is reasonable considering the volume of records requested, the likelihood that it took some time to gather the records and to review them to ascertain whether any of them, or portions thereof, were exempt from disclosure.
21. It is further found that the delay in providing access for a two-week period from August 29 to September 12, 2000 was due to the fact that the complainant was unavailable during such period because of vacation and other reasons, and therefore did not respond to the various communications from Mr. Heckman.
22. It is further found that there were simply communication
problems between the complainant and the respondent that could easily have
been resolved if the complainant had spoken to Mr. Heckman directly concerning
his confusion over the responses to his records request.
23. It is further found that the records that are responsive to the complainant’s request remain available for the complainant’s inspection at the DECD’s offices. At the hearing on this matter, the undersigned hearing officer suggested that the complainant visit the DECD’s offices within the next day or two in order to obtain access, but the complainant indicated that his schedule changed from day to day and that he could not commit to going there on any particular day.
24. It is concluded, based on all of the facts and circumstances of this case, that the respondent did not violate the provisions of §1-212(a), G.S, as alleged by the complainant. Accordingly, the complainant’s request for the imposition of civil penalties is denied.
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 November 8, 2000.
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Dolores E. Tarnowski
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:
John Belthoff
323 Old Mt. Tom Road
Bantam, CT 06750
James Abromaitis, Commissioner,
State of Connecticut, Department
of Economic and Community
Development
c/o Shelagh P. McClure, Esq.
Assistant Attorney General
55 Elm St., PO Box 120
Hartford, CT 06141-0120
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Dolores E. Tarnowski
Clerk of the Commission