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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William Oppenheimer and |
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Complainants |
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against |
Docket # FIC 2001-171 |
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John Paul, Chairman, Region 9 Board of |
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Respondents |
August 22, 2001 |
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The above-captioned matter was heard as a contested
case on May 1, 2001, at which time the complainants and the respondents
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 respondents are public agencies within the meaning of §1-200(1),
G.S.
2.
It is found that, by
letter dated March 13, 2001, the complainants requested that the respondents
provide them with a copy of an archeology report by American Cultural
Specialists [hereinafter “ACS”] on the Joel Barlow property, complete with
recommendations relative to the construction project on such property
[hereinafter “the report”].
3. It is also found that during a March 20, 2001 telephone
conversation with the complainants, the respondent director informed the
complainants that the respondents did not keep or maintain the report.
4. By letter dated March 22, 2001, and filed with the Commission
on March 26, 2001, the complainants appealed to the Commission, alleging that
the respondents violated the Freedom of Information Act by failing to provide
them with a copy of the report. As
relief, the complainants asked that the Commission order the disclosure of the
report and impose civil penalties against the respondents.
5. Section 1-200(5), G.S., defines "public records or
files" to mean “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.”
6. 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….”
[Emphasis added]
7. 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….”
8. It is found that the Region 9 Board of Education entered into a contract with Kaestle Boos Associates, Inc. [hereinafter “KBA”], an architectural firm, relative to the Joel Barlow property and that pursuant to the terms of such contract, KBA employed ACS, an archeological firm, to produce the report.
9. It is found that at the time of the request described in paragraph 2, above, the respondents did not have a copy of the report. It is further found that the respondent director nevertheless contacted KBA and requested a copy of the report, but was denied such copy at such time. It is also found that, at such time and under the terms of the contract described in paragraph 8, above, the respondents did not have a right to demand that KBA release the report to them.
10. It is found that, at the time of the request described in paragraph 2, above, the report was not prepared, owned, used, received or retained by the respondents within the meaning of §1-200(5), G.S., and not maintained or kept on file by the respondents within the meaning of §1-210(a), G.S. Therefore, it is concluded that the report was not a “public record” at such time.
11. It is also concluded that the respondents did not violate §1-210(a), G.S., as alleged in the complaint.
12. Nevertheless, it is found that, on or about April 23, 2001, the respondent director received the report and immediately informed the complainants that they would be provided with a copy of the report upon payment of a copying fee. It is also found that the complainants inspected the report at the April 24, 2001, meeting of the Region 9 Board of Education. At the hearing in this matter, the complainants entered a copy of the report into evidence.
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.
2. The complainants are advised that the Commission seeks to resolve undisputed matters through use of its ombudsman process and that, pursuant to §1-206(b)(2), G.S., if the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 22, 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:
William Oppenheimer and
Kathleen Oppenheimer
186 Lonetown Road
Redding, CT 06896-1501
John Paul, Chairman, Region 9 Board of
Education; Jay Hubelbank, Director of
Finance and Operations, Region 9 Board
of Education; and Fran Scharf, Co-Chair,
Region 9 Building Committee
c/o Frederick L. Dorsey, Esq.
Siegel, O’Connor, Schiff & Zangari
171 Orange Street
New Haven, CT 06410
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Dolores E. Tarnowski
Clerk of the Commission
FIC/2001-171/FD/mes/08/24/2001