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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Russell E. Dingle, |
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Complainant |
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against |
Docket #FIC 2000-304 |
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William A. Cugno, Adjutant General, |
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Respondents |
January 10, 2001 |
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The above-captioned matter was heard as a contested case on July 24, 2000, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with Docket # FIC 2000-303; Thomas Rempfer v. William A. Cugno, Adjutant General, State of Connecticut, Military Department [hereinafter “Docket #FIC 2000-303”]. After the hearing in this matter, by letter dated and filed July 28, 2000, the complainant requested that the hearing officer accept additional evidence into the record, pursuant to §1-21j-38, Connecticut Regulations of State Agencies. Such request is hereby 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 letter dated August 1, 1999, the complainant requested that the respondents provide him with copies of:
a. “any and all documents, records, memoranda or messages (in any form) in the possession of the Connecticut National Guard which mention by name or otherwise identify Major Russell E. Dingle for the period 1 July 1998 through 31 July 1999;
b. the telephone records of the 118 Fighter Squadron on 14 and 15 January 1999 (all telephones located within the 118 Fighter quadroon building);
c. the telephone records from Connecticut National Guard Headquarters (to include but not limited to the telephones of BGen Demers and MGen Gay) for the dates 14 January 1999 through 12 February 1999.”
3. It is found that, by memorandum dated August 5, 1999, the respondents acknowledged receipt of the request described in paragraph 2.a, above, and informed the complainant that such records would be assembled for review, and that copies would be made available at the fee of twenty-five cents per page. It is further found that the respondents did not acknowledge or address the requests described in paragraph 2.b and 2.c, above, in such letter.
4. It is found that, by letter dated August 17, 1999, the complainant informed the respondents that he agreed to the fee of twenty-five cents per page, that his requests were for all records, including electronic records, and that he was granting the respondents ninety days to compile the requested information.
5. It is found that, by separate letter dated August 17, 1999 addressed to the respondents, the complainant reiterated the requests described in paragraphs 2.b and 2.c, above.
6. It is found that, having failed to receive the requested records as described in paragraphs 2 and 5, above, the complainant renewed such request, by letter dated March 1, 2000. It is further found that, by such letter, the complainant added a request for copies of:
a. “the telephone records from 103 FW Headquarters (to include but limited to the telephones of Col. Burns and his secretary) for the dates 14 January 1999 through 12 February 1999.”
7. It is found that, having failed to receive the requested records, during a May 10, 2000 meeting with the respondent Cugno, the complainant verbally renewed his requests as described in paragraphs 2, 5 and 6, above.
8. It is found that, under cover letter dated May 18, 2000, the respondent Cugno provided the complainant with several hundred pages of records, which records were prepared for release by the respondent Tuohy. It is found that such records consisted of copies of published articles, printouts of e-mails and websites, press releases, and minutes of a first sergeants’ meeting.
9. By letter dated June 12, 2000, and filed with the Commission on June 15, 2000, the complainant alleged that the respondents violated the Freedom of Information [hereinafter “the FOI”] Act, by denying him copies of the records described in paragraphs 2, 5, 6, and 7, above. The complainant asked for the imposition of civil penalties in this matter.
10. Section 1-210(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….
11. Section 1-212(a), G.S., provides in relevant part that:
(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record….
12. It is found that, to the extent that requested records described herein exist, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
13. It is found that the records that were supplied to the complainant on May 18, 2000, as described in paragraph 8, above, were not in any way responsive to the requests described in paragraphs 2, 5, 6, and 7, above. It is further found that such records merely duplicated records which were produced by the respondent Cugno for Thomas Rempfer [hereinafter “Rempfer”], who made a separate records request of such respondent for different types of records, and who is the complainant in Docket # FIC 2000-303, which matter is consolidated herein.
14. It is concluded that, by providing the wrong records to the complainant, more than nine months after his initial request, the respondents violated §§1-210(a) and 1-212(a), G.S.
15. It is found that, during 1998 and 1999, the Connecticut Army National Guard [hereinafter “the Guard”] was in the process of addressing the controversial issue of an anthrax vaccine program, that the complainant herein was an officer in the Guard during such time, that he was assigned by the Guard to research the vaccine, that he decided not to take the vaccine, and that he ultimately resigned his commission as a Guard officer as a result of the anthrax vaccine controversy.
16. It is found that, by letter dated July 14, 2000, the respondents provided the complainant with three documents consisting of correspondence between the complainant and the Guard, which are partially responsive to the request described in paragraph 2.a, above.
17. It is concluded that, by providing the complainant with the records described in paragraph 16, above, more than eleven months after his initial request, the respondents violated §§1-210(a) and 1-212(a), G.S.
18. The Commission takes administrative notice of the record in Docket # FIC 2000-303. It is found that the respondent Cugno provided Rempfer with fourteen records which are responsive to the request described in paragraph 2.a, above, which were not provided to the complainant herein.
19. It is found that the respondents do not keep on file or maintain records responsive to the request described in paragraph 2.c, above. Accordingly, it is concluded that the respondents did not violate the FOI Act by failing to provide copies of such records to the complainant.
20. It is found that, because the respondents did not address definitely whether they currently keep on file or maintain AT&T records responsive to the requests described in paragraphs 2.b and 6.a, above, the record is unclear as to whether such records are so kept on file or maintained. Accordingly, it is concluded that, if the respondents do in fact keep on file or maintain such records, they violated §§1-210(a) and 1-212(a), G.S., by failing to provide copies of such AT&T records to the complainant. It is further concluded that, if the respondents did not in fact keep on file or maintain such records at the time of the requests described in paragraph 2.b and 6.a, above, they did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide copies of such AT&T records to the complainant.
21. It is also found that the respondents keep on file or maintain cell phone records of Col. Burns that are responsive to the request described in paragraph 6.a, above. It is further found that such records were provided to the complainant under cover letter dated July 10, 2000. It is concluded that the respondents’ provision of such records, four months after the complainant’s initial March 1, 2000, request, violated the promptness provisions of §§1-210(a) and 1-212(a), G.S.
22. It is found that the respondents do not contend that the requested records that they maintain are exempt from mandatory disclosure. It is also found that they simply ignored the complainant’s requests in this matter, and that such inaction resulted in the respondents’ violations of the complainant’s rights under the FOI Act, both in letter and spirit. It is further found that such violations were without reasonable grounds, within the meaning of §1-206(b)(2), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall immediately remit to this Commission civil penalty amounts as follows: William A. Cugno, Adjutant General, State of Connecticut, Military Department: $100.00; Michael J. Tuohy, Staff Judge Advocate, State of Connecticut, Military Department, Connecticut Army National Guard: $100.00.
2. If they have not already done so, the respondents forthwith shall conduct a thorough search of the paper and electronic records, including computer stored records, of the Connecticut Army National Guard for all existing requested records, as described in paragraphs 2, 5, 6 and 7, of the findings, above. Upon completion of such search, if records are located, such records shall be immediately provided to the complainant without charge. If the telephone records described in paragraph 20 of the findings, above, no longer exist, the respondents shall forthwith so inform the complainant in a written affidavit attesting to such fact, and include in such affidavit the circumstances under which such records were destroyed and the date or approximate date of the destruction of such records.
3. Henceforth, the respondents shall strictly comply with the provisions of the §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 10, 2001.
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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:
Russell E. Dingle
71 Shaughnessy Drive
East Hartford, CT 06118-2367
William A. Cugno, Adjutant General,
State of Connecticut, Military Department;
and Michael J. Tuohy, Staff Judge Advocate,
State of Connecticut, Military Department,
Connecticut Army National Guard
c/o Michael J. Tuohy, Staff Judge Advocate
CANG, National Guard Armory
360 Broad Street
Hartford, CT 06105-3795
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Dolores E. Tarnowski
Clerk of the Commission