FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on November 6, 2003, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.   For purposes of hearing, contested cases docket #s FIC 2003-156, Marshall Klimasewiski and Laurie Klimasewiski v. David Wigg, Chairman, Planning and Zoning Commission, Town of Morris; Christine Bochicchio; Kevin Chilson; Kim Dore; Richard Grinvalsky; Christopher Pawlowski; and Rodger Watts, as members, Planning and Zoning Commission, Town of Morris; and Planning and Zoning Commission, Town of Morris and FIC 2003-232, Marshall and Laurie Klimasewiski v. Michael Doyle, Chairman, Conservation and Inland Wetlands Commission, Town of Morris; and Conservation and Inland Wetlands Commission, Town of Morris  were consolidated with the above-captioned case.   

           

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 January 1, 2003, the complainant requested that the respondent provide him with:

 

a.                          a copy of dock permits for Bantam Lake applied for in the last five years, including name and address of applicant, and whether permit was granted or denied;

b.                          a copy of any written complaints concerning cement blocks or docks on Bantam Lake for the last five years; and

c.                          a written response within seven days in connection with an October 10, 2002 letter the complainant had sent to the respondent.

 

            3.  It is found that by letter dated January 8, 2003, the respondent acknowledged receipt of the complainant’s request and informed the complainant that the information requested would be sent to the complainant as soon as it was collected.

 

            4.  Having not received any records from the respondent, the complainant, by letter dated and filed on January 30, 2003, appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him the requested records.  

 

5.  Section 1-210(a), G.S., provides, in relevant part:

 

Except 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 … (3) receive a copy of such records in accordance with 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. 

            6.  Section 1-212(a), G.S., provides, in relevant part :

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  The fee for any copy provided in accordance with the Freedom of Information Act: …

(2)  By …[municipal] public agencies, as defined in section 1-200, shall not exceed fifty cents per page…. 

            7.  With respect to the allegations described in paragraph 2a, and 2b, above, it is found that the respondent searched his records and determined that there were no dock permits but one complaint was located.  At the hearing in this matter, the respondent testified that he sent a letter on or about February 12, 2003 to the complainant informing him that no dock permits exist and enclosed the one complaint he found.  The complainant testified that he never received such a letter and he never received a complaint.  The respondent was not able to produce a copy of the February 12, 2003 letter.

            8.  It is found that the complaint described in paragraph 7, above, is a public record, maintained by the respondent within the meaning of §1-210(a), G.S.  Accordingly, it is concluded that the complainant was entitled to receive a copy of it “promptly”.

            9.  It is concluded that the respondent failed to provide the complainant with a copy of the complaint, described in paragraphs 7 and 8 above, “promptly”, within the meaning of §§1-210(a) and 1-212(a), G.S.

            10.  Consequently, it is further concluded that the respondent violated §1-210(a), G.S., when he failed to “promptly” provide the complainant with a copy of the complaint.

            11.  With respect to the allegation described in paragraph 2c, it is found that the complainant is demanding a written response from the respondent.  The FOI Act does not obligate a public agency to create records that do not exist.  The FOI Act requires disclosure of existing records, except when such records are exempt pursuant to federal law or state statute.

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.   Forthwith, the respondent shall provide the complainant with a copy of the complaint, described in paragraphs 7 and 8 of the findings, above.                                               

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 10, 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:

 

Marshall Klimasewiski

c/o Richard S. Keen III, Esq.

406 Farmington Avenue

Farmington, CT  06032

 

Chairman, Conservation and

Inland Wetlands Commission,

Town of Morris

Three East Street

Morris, CT  06763

 

Courtesy copy to:

 

Charles E. Roraback, Esq.

Roraback & Roraback

24 Mason Street, PO Box 925

Torrington, CT  06790

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-039/FD/abg/12/12/2003