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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Cara Rubinsky and Waterbury Republican-American, |
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Complainants |
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against |
Docket #FIC 2002-204 | |
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Respondent |
January 22, 2003 | |
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The above-captioned matter was heard as a contested case on October 1, 2002, at which time the complainants 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 8, 2002, the complainants requested that the respondent provide them with copies of the following records [hereinafter “the requested records”]:
a) the contract for power washing done on East Main Street, Waterbury, by Power Shower of Greenwich in July or August of 1999;
b) purchase orders or requisitions issued for such work;
c) any other contracts between the city of Waterbury and Power Shower; and
d) any other correspondence from the mayor’s office, community development office, the respondent, or the street department relating to Power Shower.
3. It is found that, by letter dated April 12, 2002, the respondent informed the complainants that the requested records were not in the custody of the respondent. It is also found that the respondent informed the complainant that the requested records had been seized by a law enforcement agency.
4. By letter dated April 25, 2002, and filed with the Commission on May 2, 2002, the complainants alleged that the respondent violated the Freedom of Information Act by denying the complainants copies of the requested records, contending that the requested records did not lose their status as public records because of a seizure by law enforcement officials.
5. Section 1-210(a), G.S., provides in relevant part:
[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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212….
6. Section 1-212(a), G.S., provides in relevant part: “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
7. It is found that the Federal Bureau of Investigation seized the requested records on July 26, 2001, and that the respondent did not maintain copies of such records. It is further found that, upon receipt of the request described in paragraph 2, above, the respondent contacted the office of the United States Attorney, by letter dated April 9, 2002, to request release of the requested records for purposes of complying with such request.
8. It is also found that, by letter dated April 12, 2002, the United States Attorney denied the respondent’s request, as described in paragraph 7, above.
9. It is found that the respondent does not keep on file or maintain the requested records, and further, that the respondent did not keep on file or maintain the requested records at the time of the request described in paragraph 2, above.
10. It is concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., by denying the complainants copies of the requested records, as alleged in the complaint.
11. At the hearing in this matter, the parties stipulated that the requested records are public records and the respondent stipulated that were the requested records in its possession, it would provide them to the complainants.
12. At the hearing in this matter, the complainants conceded, and it is therefore found, that they were aware that the respondent did not keep on file or maintain the requested records and that the United States Attorney had refused to release such records to the respondent, at the time of the filing of the complaint in this matter.
13. At the hearing in this matter, the respondent contended that, in consideration of the concession and findings described in paragraph 12, above, the complaint in this matter was filed frivolously.
14. Section 1-206(b)(2), G.S., provides in relevant part that:
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 at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, 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.
15. The Commission takes administrative notice of the records and final decision in Docket #FIC 1998-341; Jonathan F. Kellogg and the Republican-American v. Assistant Commissioner, State of Connecticut, Department of Environmental Protection, Division of Air Waste and Water Programs; and State of Connecticut, Department of Environmental Protection, Division of Air Waste and Water Programs (June 30, 1999) [hereinafter “Docket #FIC1998-341].
16. In Docket #1998-341, the Commission strongly recommended that the respondents in that matter make every effort to obtain records requested in that matter from the United States Attorney’s office in order to comply with the request therein. At the hearing in this matter, counsel for the complainants represented to the Commission that such a recommendation from the Commission resulted in the United States Attorney releasing the records in Docket #1998-341. Such counsel further represented that such precedent was the reason the complainants pursued the complaint in this matter. Accordingly, it is concluded that, based upon the facts and circumstances of this case, the complainant in this matter was not filed frivolously.
17. At the hearing in this matter, the respondent pledged to contact the United States Attorney to see if such office would allow the complainants to inspect 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.
2. Although the records are no longer in the custody of the respondent and this Commission cannot order the disclosure of those records at this time, this Commission strongly recommends that the respondent forthwith make every effort to obtain copies of the records described in paragraph 2 of the findings, above, from the United States Attorney’s office and provide those copies to the complainants, or in the alternative, to obtain permission from such office for the complainants to inspect the requested records.
3. The Commission notes that §11-8(b), G.S., addresses the transfer of public records, and that §11-8(c), G.S., provides for the recovery of certain public records by the State Librarian.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 22, 2003.
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Ann B. Gimmartino
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:
Cara Rubinsky and Waterbury
Republican-American
c/o Thomas G. Parisot, Esq.
41 Church Street
Waterbury, CT 06723
236
Grand Street
Waterbury, CT 06702
________________________________
Ann B. Gimmartino
Acting Clerk of the Commission