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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Joseph Malewicki, |
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Complainants |
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against |
Docket #FIC 2001-197 | |
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State of Connecticut, Commissioner of Public Works, |
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Respondent |
April 10, 2002 | |
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The above-captioned matter was heard as a contested
case on July 31, 2001, 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.
It is found that by
letter dated April 5, 2001 to the State of Connecticut, Department of
Education, Bureau of Human Resources (hereinafter “the Bureau”), the
complainant, through his attorney, made a request for “copies of any and all
public records and files” regarding an incident that took place on August
30, 1999 at J.M. Wright Technical School in Stamford, Connecticut, wherein
certain state police officers and others searched the complainant’s person
and vehicle” (hereinafter “the April 5 request”).
3.
It is found that the
April 5 request was the complainant’s second request for such records and
that his first request was made by letter dated February 21, 2001.
4.
By letter dated April
13, 2001 and filed on April 16, 2001 the complainant appealed to this
Commission alleging that the Bureau violated the Freedom of Information (“FOI”)
Act by failing to provide the requested records even though he’d been told
by the Bureau that the information would be provided within two weeks of his
February 21, 2001 request.
5.
The Commission issued
a Notice of Hearing and Order to Show Cause on April 25, 2001 and originally
named the Bureau as the respondent. Such matter was originally scheduled for hearing on May 15,
2001 at which time it came to the Commission’s attention that the Bureau
had, after reviewing the complainant’s request, notified the Commissioner of
Public Works of such request and that the Commissioner of Public Works
thereafter denied access to the requested records pursuant to §1-210(b)(19),
G.S.
6.
Section 1-210(b)(19),
G.S., provides in relevant part that nothing in the FOI Act shall require the
disclosure of:
records,
the disclosure of which the Commissioner of Public Works . . . has reasonable
grounds to believe may result in a safety risk, including the risk of harm to
any person, any state-owned or leased institution or facility or any fixture
or appurtenance and equipment attached to, or contained in such institution or
facility . . . .
7.
Section 1-210(d), G.S.,
provides in relevant part that “in any appeal brought under the provisions
of section 1-206 of the Freedom of Information Act for denial of access to
records for any reasons described in subdivision (19) of subsection (b) of
this section, such appeal shall be against the Commissioner of Public Works
exclusively . . . .”
8.
Based upon the
information gleaned on May 15, 2001, and pursuant to §1-210(d), G.S., the
Commission re-issued a Notice of Hearing and Order to Show Cause, naming the
State of Connecticut, Commissioner of Public Works as the respondent and
removing the Bureau as the respondent in this matter.
9.
At the start of the
July 31, 2001, hearing on this matter, the respondent objected to the
proceedings and moved to dismiss the complaint on the grounds that:
a.
the complaint was not
filed against the respondent and that the hearing could not proceed until the
respondent is made a party by the letter of complaint;
b.
the complaint does
not contain an allegation that the complainant’s request was denied; and
c.
the complaint was
filed prematurely, because it was filed before the complainant received a
letter of denial.
The
respondent refused to proceed until the hearing officer ruled on his motion
claiming that the Commission lacked subject matter jurisdiction over the
complaint.
10.
Consequently, the
hearing officer determined that the Commission had subject matter jurisdiction
over the complaint and denied the respondent’s motion to dismiss.
The hearing officer declined to explain his ruling on the record at
that time and informed the respondent that such explanation would be provided
in his report of hearing officer.
11.
With respect to the
respondent’s claim described in paragraph 9a, it is the Commission’s
responsibility to designate the proper parties in a contested case.
In that regard, §1-21j-30 of the Regulations of Connecticut State
Agencies provides in relevant part that:
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. . in issuing the notice of hearing . . . the executive director or his or
her designee shall designate as a party any person known to the commission
whose legal rights, duties or privileges are required by statute to be
determined by a commission proceeding and who is required by law to be a
party in a commission proceeding, and any person whose participation as a
party is then deemed to be necessary to the proper disposition of such
proceeding.
12.
It is found that at
the time this Commission issued its first Notice of Hearing and Order to Show
Cause in this matter, the Bureau was the only party whose legal rights, duties
or privileges would apparently be determined by the Commission’s
proceedings. However, based upon
the information gleaned on May 15, 2001, it became apparent that the
respondent, pursuant to the express provisions of §1-210(d), G.S., is the
appropriate party respondent in this matter.
13.
Further, the
Commission notes that since the Bureau is the actual custodian of the
requested records, it is hardly appropriate to expect that the complainant
would name the respondent in his letter of complaint.
14.
With respect to the
respondent’s argument described in paragraph 9b, above, §1-206(a), G.S.,
provides in relevant part that:
any
denial of the right to inspect of copy records provided for under section
1-210 shall be made to the person requesting such right by the public agency
official who has custody or control of the public record, in writing, within
four business days of such request . . . Failure to comply with a request
within the applicable number of business days shall be deemed to be a denial.
15.
It is found that the
complainant filed his complaint with this Commission six (6) days after his
April 5, 2001 request, at which time neither the Bureau nor the respondent had
complied with his request. Therefore,
it was appropriate for the complainant to deem such failure to comply as a
denial pursuant to §1-206(a), G.S.
16.
With respect to the
respondent’s claim described in paragraph 9c, above, it is found that
neither the FOI Act nor the Regulations of Connecticut State Agencies require
that a complainant first receive an actual letter of denial before a complaint
may be filed with this Commission nor does either require that the complainant
explicitly state in his letter of complaint that his request was denied in
order to file such complaint.
17.
It is found therefore
that the complaint, as filed, was not premature as claimed by the respondent.
Thus, as determined already on the record, the respondent’s motion to
dismiss the complaint in this matter is denied.
18.
It is further found
that, given the clarity of the law regarding the respondent’s claims as
described in paragraph 6, above, such claims are disingenuous at best and
serve only to delay this Commission’s determination of the complaint on its
merits.
19.
With respect to the
complaint in this matter, §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 receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.
20.
It is found that the
requested records are public records within the meaning of §1-210(a), G.S.
21.
It is found that the
respondent Commissioner’s designee, Raymond Philbrick, examined the
requested records and determined that disclosure of the records would result
in a safety risk to persons named in the records and that the safety risk
included a risk of harm to those persons because the records include
statements regarding weapons being brought onto school property and because
certain individuals named in the report expressed a concern for their safety.
22.
It is found that Mr.
Philbrick, based on his determination described in paragraph 21, above,
recommended to the respondent Commissioner that the requested records be
withheld from disclosure.
23.
It is found that the
respondent Commissioner accepted Mr. Philbrick’s recommendation and denied
the complainant’s records request by letter dated April 30, 2001, under
§1-210(b)(19), G.S.
24.
The respondents
submitted the subject records to the Commission for in-camera
inspection, which records have been identified as in-camera documents
#s 2001-197-1 through 2001-197-69, inclusive.
25.
It is found, after
careful review of the in-camera records and in consideration of the
surrounding circumstances, that the respondent has reasonable grounds to
believe that the disclosure of such records may result in a safety risk,
including the risk of harm to any person, as set forth in §1-210(b)(19), G.S.,
and this Commission declines to substitute its judgment for that of the
respondent Commissioner.
26.
It is therefore
concluded that the respondent did not violate the disclosure provisions of
§1-210(a), G.S., by failing to disclose the requested records.
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 April 10, 2002.
_______________________________________
Petrea A. Jones
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:
State of Connecticut,
Commissioner of Public Works
c/o Charles Walsh, Esq.
Assistant Attorney General
and
George Finlayson, Esq.
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-197/FD/paj/4/11/2002