FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on January 16, 2003, 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 e-mail dated August 20, and September 5, 2002, the complainant made a request to Mr. Ronald Shaw (hereinafter “Mr. Shaw”), Associate Vice President of Public Safety of the respondent Western Connecticut State University (hereinafter “the respondent university”) for a copy of all records pertaining to the investigation of alleged threatening behavior between the complainant and a Charles Spiridon, Dean of Human Resources of the respondent university (hereinafter “Mr. Spiridon”) which investigation resulted in a Finding of Fact/Threat Assessment Report.  The complainant indicated in his request that the records should include, but not be limited to: all handwritten or typed notes; reports of witness interviews; e-mails; rough drafts; drafts, including those submitted to the President of the respondent university for his approval and subsequently changed; tape recordings; interoffice or intra-office memoranda including communications with individuals at the System Office.  

 

3.      By e-mail dated and filed on September 6, 2002, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for all documents related to an investigation of alleged work place violence. 

 

4.      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 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.

 

5.      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 . . . .”

 

6.      It is found that the requested records, to the extent such records exist, are public records within the meaning of §1-210(a), G.S.

 

7.      It is found that the complainant filed a complaint with the respondent president accusing Mr. Spiridon of menacing behavior and Mr. Spiridon countered with his own complaint of harassment against the complainant.

 

8.      It is found that the complaints were investigated by Mr. Shaw, who conducted taped interviews, during which he took notes, of witnesses, one of whom was the complainant, and produced a report that was issued on December 10, 2001 (hereinafter “the report”). 

 

9.      It is found that subsequent to the issuance of the report, the respondents received similar requests for records pertaining to the report from the complainant and the student newspaper, both of which were originally denied.

 

10.  It is found, however, that at some time prior to the hearing on this matter, the respondent provided the complainant with a copy of the records responsive to his requests, which included the final report, a document purporting to be a draft of and is identical to the final report, and all e-mail correspondence among the complainant, the respondent president and Mr. Shaw.  

 

11.  At the hearing on this matter, the complainant explained that he was expecting to receive more records which he believed should have included a copy of the tape recording of his interview with Mr. Shaw and the notes Mr. Shaw took during that interview.  The complainant further explained that he also wanted a copy of any drafts that were substantively different from the final draft because he believes that Mr. Shaw might have been unduly persuaded by the respondent president to change his report. 

 

12.  At the hearing on this matter, the respondents claimed that Mr. Shaw discarded his notes and recorded over the tape recordings of all of the interviews pertaining to the investigation described in paragraphs 7 and 8 above, that there are no other drafts of the final report and that the complainant was so informed on January 2, 2003.  The respondent maintained that the complainant was provided with all the records response to his request that are maintained by the respondents or Mr. Shaw and that no other records exist.

 

13.  At the hearing on this matter, the complainant conceded that he had been informed of the respondents’ claim but that he did not believe it and further that if Mr. Shaw destroyed his notes and the tape recordings, he did so intentionally to destroy any evidence that could be used to counter the facts and conclusions in the report.

 

14.  Nonetheless, it is found that the complainant failed to prove that the respondents maintain Mr. Shaw’s notes or the tape recordings of the interviews or that any other records responsive to his request exist, aside from those provided to him. 

 

15.  Consequently, it is found that the complainant was provided with all the records response to his request that are maintained by the respondents or Mr. Shaw and that no other responsive records.

 

16.  It is concluded therefore that the respondents did not violate the disclosure provision of §§1-210(a) or 1-212(a), G.S., as alleged by the complainant.

 

 

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 Commission cautions the respondents that public records generated during the course of an investigation, such as that described in paragraph 8 of the findings, above, may be subject to the state records retention statutes and the respondents should contact the state records retention administrator for the applicable retention requirements.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

July 9, 2003.

 

 

___________________________________

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:

 

Paul Cayer

173 Old Burrville Road

Torrington, CT  06790

 

President, State of Connecticut, Western Connecticut

State University; and State of Connecticut,

Western Connecticut State University

c/o Charles P. Spiridon, Dean of Human Resources

Western Connecticut State University

181 White Street

Danbury, CT  06810

 

Courtesy copy to:

 

Eunice DiBella, Public Records Administrator

Connecticut State Library

231 Capitol Avenue

Hartford, CT  06106

 

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-418FD/abg/07/11/2003