FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by |
FINAL DECISION |
||
|
Mildred R. Hornblower, |
|||
|
|
Complainant |
|
|
|
|
against |
Docket #FIC 2000-427 |
|
|
Superintendent of Schools, |
|
||
|
|
Respondents |
December 13, 2000 |
|
|
|
|
|
|
The above-captioned matter was heard as a contested case on October 26, 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. On July 21, 2000, the complainant visited the office of the respondent and orally requested of a staff person access to all records concerning the school redistricting process. The staff person informed the complainant at that time that she needed the consent of the respondent prior to providing access to any records. The staff person further informed the complainant that the respondent was in a meeting, that he could not be interrupted and that the complainant would have to come back at another time.
3. On July 24, 2000, the complainant returned to the respondent’s office with a letter, wherein she requested from the respondent “any and all documents in your possession pertaining to the redistricting process and final decision.” The complainant indicated that her request included any documents “reviewed by [the respondent] and Board of Education members including any communications from Wayne Fox, Esq. And/or Steve Finn, Esq., attorneys representing the parents of Plan 9B.” The complainant was informed at that time that the respondent was on vacation. After some discussion with members of the respondent’s staff as to who could or would accept the complainant’s request, the complainant ultimately left her letter with the respondent’s secretary.
4. It is found that sometime toward the end of the week of July 24, 2000, the respondent telephoned the Assistant Superintendent of New Canaan Public Schools (hereinafter “assistant superintendent”) and discussed the complainant’s July 24, 2000 request. The respondent advised the assistant superintendent to provide the complainant with the records that were responsive to her request.
5. On July 28, 2000, the assistant superintendent contacted the complainant by telephone and asked the complainant to narrow her request. The complainant agreed to narrow her request and advised that she did not need copies of board of education minutes or letters from the complainant to the respondent. At that time the complainant and the assistant superintendent agreed that the responsive records would be available for the complainant on August 17, 2000.
6. On July 31, 2000, the complainant contacted the respondent’s office and asked that the records instead be made available by August 4, 2000. The complainant was informed at that time that the assistant superintendent was on vacation.
7. It is found that the complainant visited the respondent’s office on August 4, 2000 and received a cover letter from the respondent’s secretary along with fifty-two pages of records in response to her request.
8. By undated letter, filed on August 7, 2000, the complainant appealed to the Commission alleging, among other matters not relevant to this complaint, that the respondent had not complied with the Freedom of Information (hereinafter “FOI”) Act and failed to provide her with copies of all of the records that were responsive to her request.
9. 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.
10. 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.
11. 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.
12. By letter to the respondent dated August 6, 2000, the complainant requested that the respondent provide her with certain records or classes of records that the complainant claimed were missing from the records provided to her on August 4, 2000, which records were referenced in the records that had been provided to her.
13. It is found that upon his return from vacation, the respondent reviewed both the materials that had been provided to the complainant on August 4, 2000, and the complainant’s August 6, 2000 follow-up letter. The respondent then went through his “pile of stuff” concerning redistricting and located some additional records that were responsive to the complainant’s request. On August 16, 2000, the respondent provided the complainant with a cover letter, under which he included copies of additional records that he had located in response to her July 24, 2000 request.
14. At the hearing on this matter, the complainant indicated that there were a number of records that were referred to in the records that had been provided to her on August 4 and August 16, 2000, which records were not included among the records provided. The complainant delineated eighteen records or categories of records that she believes exist or should exist and which might be in the respondent’s possession.
15. The respondent testified at the hearing on this matter, that he provided the complainant with all of the records in his possession that were responsive to her request, with the exception of one letter that he claimed was exempt from mandatory disclosure due to attorney-client privilege.
16. The respondent was scheduled to submit to the Commission, for in camera inspection, on November 6, 2000, the record that he claimed was exempt from disclosure. However, on that date, counsel for the respondent hand-delivered a cover letter to the undersigned hearing officer stating that upon review of the records that had been provided to the complainant, it became evident that the respondent had already provided the complainant with the letter that he claimed to be exempt. Therefore, the respondent withdrew his claims with respect to such letter.
17. After a thorough review of each of the records or categories of records delineated by the complainant, it is found that although the respondent may have had copies of certain records referenced by the complainant at one time, he provided the complainant with all paper copies of responsive records that were maintained by him at the time of the complainant’s request, either on August 4 or August 16, 2000.
18. It is further found that although the Commission is troubled by the poor record-keeping of the respondent and the possibility that certain records may not have been maintained in accordance with state records retention guidelines, such matters are not within the jurisdiction of this Commission.
19. It is further found that the Commission also lacks jurisdiction over the issue of whether certain records sought by the complainant “should” exist, as alleged by the complainant.
20. However, it is further found that, given the respondent’s testimony with regard to the nature of his search, as described in paragraph 13 above, it is unclear whether certain portions of e-mail communications sought by the complainant might still be maintained and accessible on the respondent’s computer. Specifically, it is unclear whether two records, an April 8, 2000 e-mail to the respondent from the chairman of the school rebalancing committee, containing attachments (which attachments were missing from the paper copy provided to the complainant) and an April 17, 2000 e-mail to the respondent from a Mr. Gaetano (only the first page of which was provided to the complainant in paper form), might be retrievable in their entirety. This matter will be addressed in paragraph 1 of the order, below.
21. With regard to the issue of whether the respondent’s provision to the complainant of copies of the responsive records maintained by him on August 4 and August 16, 2000 was prompt, the Commission acknowledges the respondent’s efforts in directing his staff to comply with the complainant’s request while he was away on vacation, during the week following the complainant’s written request and his personal efforts upon his return from vacation in furtherance of such compliance. However, the Commission finds that the initial responses to the complainant’s oral request on July 21, 2000 and written request on July 24, 2000, as communicated through the respondent’s staff members and described in paragraphs 2 and 3, above, constituted a denial of prompt access within the meaning of §§1-210(a) and 1-212(a), G.S. The FOI Act requires the respondent to provide prompt access to public records during regular office or business hours. The respondent cannot deny a person access simply because he is involved in a meeting. In addition, the fact that the complainant was told to come back at another time when the respondent was available, that she was not informed that the respondent would be away on vacation on the very next business day and that she did not obtain any copies of records for another week and a half from the date she was permitted to make her request, further bolster the Commission’s determination in this regard.
22. It is therefore concluded that the respondent violated the provisions of §§1-210 and 1-212(a), G.S., under the facts and circumstances of this case.
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 conduct a diligent search of his computer-stored records to ascertain whether he currently maintains the e-mail communications described in paragraph 20, of the findings, above. If after such search, the respondent locates either the attachments to the April 8, 2000 e-mail or that portion of the April 17, 2000 e-mail from Mr. Gaetano, both of which were not provided to the complainant in paper form, the respondent shall forthwith provide the complainant with copies of such computer-stored e-mail communications. In the event the respondent does not locate any or all of such e-mail communications sought by the complainant, the respondent shall forthwith prepare an affidavit detailing the nature and outcome of his search, including a list of those communications that could not be found, and shall forthwith provide the complainant with such affidavit.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 2000.
_______________________________________
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:
Mildred R. Hornblower
342 Weed Street
New Canaan, CT 06840
Superintendent of Schools,
New Canaan Public Schools
c/o Christine L. Chinni, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
___________________________________
Dolores E. Tarnowski
Clerk of the Commission