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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Donal C. Collimore, |
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Complainant |
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against |
Docket #FIC 2000-242 |
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Department of Public
Works, City |
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Respondents |
November 29, 2000 |
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The above-captioned matter was heard as a contested case on June 8, 2000, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Following the hearing in this matter, the respondents submitted the records at issue for in camera inspection. The respondents’ post-hearing request to file an affidavit as additional evidence in this matter is denied.
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.
2. It is found that by letters
dated April 25, 2000, the complainant requested that the respondents provide
him with a copy of “all written applications, contracts and other
correspondence on file with the City of Bridgeport for a company known as ‘Integrated
Utilities’” (hereinafter “requested records”).
3. Having failed to receive the requested records, the complainant, by letter dated May 12, 2000 and filed on May 16, 2000, appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the requested records.
4. Section 1-200(5), G.S.,
defines public records as “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.”
5. In addition, §1-210(a), G.S.,
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.
6. It is found that by letter dated May 23, 2000, the respondents informed the complainant that the only records maintained by the respondents that are responsive to his request are a) a fee computation regarding the cost of removal of a Public Pay Telephone, which document could be obtained by the complainant from the Department of Public Facilities and b) an e-mail, being claimed by the respondents as exempt from disclosure pursuant to §1-210(b)(4), G.S.
7. It is also found that by letter dated June 5, 2000, the respondents further informed the complainant that the record previously identified as a fee computation in their letter of May 23, 2000 to the complainant is actually a receipt, which receipt was being provided to the complainant as an enclosure with the June 5, 2000 letter.
8. At the hearing on this matter, the respondents informed the Commission that two additional e-mails, making a total of three e-mails, exist for which a §1-210(b)(4), G.S., claim of exemption is being made.
9. The issues to be addressed in this complaint are a) whether the three e-mails at issue are exempt from disclosure pursuant to §1-210(b)(4), G.S., and b) the timeliness of the respondents’ provision of access to the requested records.
10. It is concluded that the receipt and e-mails described in paragraphs 7 and 8, above, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.
11. The e-mails were submitted to the Commission by the respondents for an in camera inspection. For identification purposes, the in camera records number three pages and have been designated IC# FIC 2000-242-1 through FIC 2000-242-3.
12. Section 1-210(b)(4), G.S., permits the nondisclosure of: “[r]ecords
pertaining to strategy and negotiations with respect to pending claims or
pending litigation to which the public agency is a party until such litigation
or claim has been finally adjudicated or otherwise settled.”
13. Section 1-200(9), G.S.,
defines "Pending litigation" to mean
“(A) a written notice to an agency which sets forth a demand for
legal relief or which asserts a legal right stating the intention to institute
an action before a court if such relief or right is not granted by the agency;
(B) the service of a complaint against an agency returnable to a
court which seeks to enforce or implement legal relief or a legal right;
or (C) the agency's
consideration of action to enforce or implement legal relief or a legal right.”
[Emphasis added.]
14. It is found that the respondents are conducting an investigation into alleged improper Public Pay Phone activity, and the in camera records pertain to such investigation and alleged activity.
15. It is also found that the
respondents are considering “action to enforce or implement legal relief or
a legal right” in connection with the alleged improper activity, and that
such consideration falls within the definition of “pending litigation” as
set forth in §1-200(9)(C), G.S.
16. It is therefore found that the in camera records pertain to strategy with respect to pending litigation within the meaning of §1-210(b)(4), G.S.
17.
Consequently, it is concluded that the in camera records
are permissively exempt from public disclosure, and that the respondents did
not violate §1-210(a), G.S., when they failed to provide the complainant with
a copy of the in camera records.
18. With respect to the
timeliness of the respondents’ provision of access to the receipt, described
in paragraph 7, above, it is concluded that such provision, more than one
month after the complainant’s request was made, was not prompt within the
meaning of §1-210(a), G.S.
19. At the hearing on this matter, the respondents indicated that they have already taken steps to better streamline, and improve dealing with, the FOI requests they receive. The respondents also suggested that the complainant might be attempting to harass the respondents in light of several FOI requests submitted to the respondents by the complainant and/or his client. No evidence of an attempt to harass is found.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. With respect to the in camera records, the complaint is hereby dismissed.
2. With respect to the provision of access to the receipt, described in paragraph 7 and 18 of the findings, above, henceforth, the respondents shall strictly comply with the promptness provision of §1-210(a), G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.
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Ann B. Gimmartino
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:
Donal C. Collimore, Esq.
Collimore and Collimore
1150 Post Road
Fairfield, CT 06430-6040
Melanie J. Howlett, Esq.
Office of the City Attorney
City of Bridgeport
999 Broad Street
Bridgeport, CT 06604
___________________________________
Ann B. Gimmartino
Acting Clerk of the Commission