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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Robert Fromer, |
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Complainants |
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against |
Docket #FIC 2001-527 | |
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James Heckman, Legislative Liaison and Freedom of Information Act Coordinator, State of Connecticut, Department of Economic and Community Development; and State of Connecticut, Department of Economic and Community Development, |
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Respondent |
March 13, 2002 | |
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The above-captioned matter was heard as a contested case on January 8,
2002, at which time the complainant and the respondents 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
respondents are public agencies within the meaning of §1-200(1),
G.S.
2.
By
electronic mail (hereinafter “e-mail”) dated September 22, 2001, the
complainant requested “to examine all correspondence, communications,
including messages, e-mail/faxes, meeting reports, etc. in the possession of
the… Department of Economic and Community Development received from or sent
to the Corcoran Jennison Company” dated between January 1, 2000 and
September 22, 2001 (hereinafter “Corcoran Jennison records”).
3.
By
e-mails dated September 27, 2001 and November 13, 2001, respondent James
Heckman informed the complainant that the respondents were researching what
information they maintained responsive to his request and whether it could be
disclosed. Mr. Heckman informed
the complainant that the Department of Economic and Community Development
(hereinafter “DECD”) would contact him soon.
4.
By
e-mail dated October 5, 2001, the complainant requested “to examine all
correspondence, communications, including messages, e-mail/faxes, meeting
reports and any and all information in possession of the…[DECD] regarding
the Design Review Team for the Corcoran Jennison Hotel in the Fort Trumbull
Municipal Development Plan area, New London, Connecticut by October 15, 2001”
(hereinafter “Design Review Team records”).
5.
By
e-mail dated October 10, 2001, respondent Heckman acknowledged the complainant’s
October 5, 2001 request for the Design Review Team records.
Respondent Heckman advised the complainant that the DECD was
researching what information it maintained and whether it could be disclosed
to the complainant.
6.
By
e-mail dated October 12, 2001, respondent Heckman acknowledged receipt of a
telephone message from the complainant, informed him that the DECD was still
compiling the requested information and that the review would not be completed
by the upcoming Monday, as requested. Finally,
Mr. Heckman thanked the complainant for his patience.
7.
By
e-mails dated October 22 and October 26, 2001, respondent Heckman again
informed the complainant that the DECD was still compiling the requested
information and that the process of reviewing the records had not been
completed. Mr. Heckman again
informed the complainant that the respondents would contact him once it
completed his request and thanked him for his patience.
8.
By
e-mail dated and received by the complainant on November 13, 2001, respondent
Heckman informed the complainant that the requested Design Review Team records
were compiled and available for his inspection. Mr. Heckman asked the complainant to contact him to set up a
time that the complainant could visit the DECD to inspect such records.
Mr. Heckman further informed the complainant that the DECD had not
completed his request for the Corcoran Jennison records and would contact him
soon concerning them.
9.
By
letter dated November 26, 2001, and filed on November 28, 2001, and revised by
letter dated and filed on January 3, 2002, the complainant appealed to the
Commission alleging that the respondents violated the Freedom of Information
(hereinafter “FOI”) Act by failing to provide prompt access to the
requested records. In addition,
the complainant requested that the Commission levy the maximum fine
permissible by law against the respondents.
10.
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.
11.
It is found
that the requested records are public records within the meaning of §1-210(a),
G.S.
12.
It is found
that the respondents hand-delivered copies of the same Design Review Team
records requested by the complainant on October 5, 2001 to an attorney in New
London pursuant to a subpoena on November 1, 2001, only two and one-half days
after the DECD had been served with the subpoena.
13.
It is found
that respondent Heckman actually
sent the e-mail dated November 13, 2001, advising the complainant that the
Design Review Team records were available for his inspection, as described in
paragraph 8, above, on November 2, 2001, but for some reason, possibly due to
a computer virus that existed at the DECD from November 5-9, 2001, the e-mail
was not delivered and received by the complainant until Tuesday, November 13,
2001 – the day after the Veteran’s Day holiday.
14.
By e-mails
dated November 27, 28 and 29, 2001, respondent Heckman asked the complainant
to come to the DECD to inspect the Design Review Team records.
15.
By e-mail
dated November 30, 2001 respondent Heckman stated that the Design Review Team
records had been made available to the complainant on November 29, 2001, that
the complainant had inspected such records, requested and received copies of
certain records totaling twelve pages at a cost of $3.00.
He also stated that the DECD had not completed his request for the
Corcoran Jennison records and asked the complainant to contact the DECD if he
was no longer interested in receiving such records.
16.
It is found
that as of the date of the hearing on this matter, the complainant continued
to seek access to the Corcoran Jennison records, but the respondents had not
provided the complainant with such access, and that at the hearing on this
matter, the respondents claimed that such records would be made available to
the complainant on January 18, 2002.
17.
Also at the
hearing on this matter, the respondents claimed that : the only reason they
compiled the Design Review Team records requested in the complainant’s
October 5, 2001 e-mail prior to compiling the Corcoran Jennison records
requested in the complainant’s September 22, 2001 e-mail, was because the
complainant had asked that the latter request be compiled first;
(ii) all of the requested records first had to be culled from a vast
amount of records compiled by various employees of the respondent DECD and
then reviewed by respondent Heckman for any applicable FOI Act exemptions
before disclosure of such records; and (iii) it took longer to compile the
Design Review Team records for the complainant than to compile them in
response to the subpoena because there are very limited grounds on which to
object to disclosure pursuant to a subpoena while there are numerous
exemptions to review under the FOI Act prior to disclosure.
18.
It is found
the September 22, 2001 request for the Corcoran Jennison records and the
October 5, 2001 request for the Design Review team records all pertain to
essentially the same project in New London.
19.
It is found
that the complainant does not recall asking the respondents to handle his
request dated October 5, 2001 for the Design Review Team records prior to
handling his request dated September 22, 2001 for the Corcoran Jennison
records.
20.
With respect
to the Design Review Team records, requested on October 5, 2001, it is found
that the respondents’ provision of access to such records nearly one month
after such records were requested was not prompt within the meaning of
§1-210(a), G.S., particularly in view of the fact that the respondents were
able to compile the very same records in response to a subpoena and hand–deliver
them to an attorney within two and a half days of receiving such subpoena. While the respondents’ claim that a review of records for
FOI Act exemptions takes a longer period of time than review to comply with a
subpoena may be true to some extent, there is simply no credible explanation
for the extensive delay that occurred under the facts and circumstances of
this case.
21.
With respect
to the Corcoran Jennison records, requested on September 22, 2001, it is
further found that it is inconceivable that it would take four months time to
comply with such request, particularly given the fact that such records
pertain to the same general subject matter as the Design Review Team records.
While the respondents were not acting in bad faith in this case, their
delay in complying with the complainant’s request,
for the Corcoran Jennison records, which continued as of the date of
the hearing on this matter, is simply not reasonable or acceptable under the
facts and circumstances of this case.
22.
It is
therefore concluded that the respondents violated the promptness provisions of
§1-210(a),
G.S., when they failed to provide prompt access to both the Corcoran Jennison
records, requested on September 22, 2001 and the Design Review Team records,
requested on October 5, 2001.
23. The Commission declines to impose civil penalties in this case pursuant to §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.
If
the respondent has not already done so, the respondent shall forthwith provide
copies of the Corcoran Jennison records requested on September 22, 2001, as
described in paragraph 2 of the findings, above, to the complainant free of
charge.
2. Although the Commission declined to do so in this case, the Commission cautions the respondents, that future violations, similar to those set forth in paragraph 22, of the findings above, could result in the imposition of civil penalties.
Approved by Order of the Freedom of
Information Commission at its regular meeting of March 13, 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:
James
Heckman, Legislative Liaison
and Freedom
of Information Act
Coordinator,
State of Connecticut,
Department of
Economic and
Community
Development; and
State of
Connecticut, Department
of Economic
and Community
Development
c/o Shelagh
P. McClure, Esq.
Assistant
Attorney General
55 Elm
Street, PO Box 120
Hartford, CT 06141-0120
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-527/FD/paj/3/15/2002