FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on September 30, 2003 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case caption has been amended to identify the respondents by name in this matter.

           

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 letter dated May 21, 2003, and filed on May 30, 2003, the complainant appealed to the Commission alleging that the respondents failed to comply with the Commission’s final decision and order in contested case docket #FIC 2002-334, Allen Bacchiochi v. First Selectman, Town of Stafford; and Town Administrator, Town of Stafford (hereinafter “FIC 2002-334”).  The complainant requested in his complaint that the Commission consider the imposition of a civil penalty.

 

3.  The Commission takes administrative notice of the record and decision in FIC 2002-334, wherein the complainant, in paragraph 2a, requested that the respondent provide him with “Any locations where road sand sweeping have been used as fill”.

 

4.  In the Commission’s March 12, 2003 final decision in FIC 2002-334, the Commission ordered:

 

“1.  Forthwith, the respondents shall provide the complainant with records relating to the request in paragraph 2a, above.

 

2.  In complying with paragraph 1 of this order, the respondents shall also forthwith submit to the complainant an affidavit setting forth what diligent steps they have undertaken to ascertain whether such documents exist and setting forth what, if any, documents do exist.”

 

5.  At the hearing on the current complaint, the complainant maintained that the respondents failed to timely comply with the portion of the Commission’s order that directed “forthwith” action on their part.

 

6.  It is found that in a letter to the complainant, dated July 23, 2003, the respondents’ attorney stated:

 

“After a comprehensive review of the records I am enclosing the Affidavits as required by the Freedom of Information Commission.

 

Sorry for the delay and I hope that it didn’t cause any inconvenience.”

 

7.  The respondents’ attorney explained at the hearing on this matter that between March and July 2003, the respondents were reviewing records for the purpose of determining where the sand may have been placed.  The respondents’ attorney further said that on July 11, 2003, he became aware that the affidavit had not been filed, and he contacted a Commission attorney who purportedly advised him to submit the affidavit.

 

8.  The respondents’ attorney also explained that the respondents’ delay in complying with the Commission’s order was due, at least in part, to the resignation of the respondents’ attorney’s secretary.

 

9.  It is found that the respondents are the custodians of the requested records and are the officials directly responsible for ensuring compliance with the Commission’s order in Docket #FIC 2002-334.

 

10.  It is also found that the respondents’ July 23, 2003 provision of the affidavits, some four months after the Commission’s final decision and order in FIC 2002-334, was not in compliance with the “forthwith” order in that case.

 

11.  With respect to the complainant’s request for the imposition of a civil penalty §1-206(b)(2), G.S., provides in relevant part that:

 

. . . . [U]pon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial 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 the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

12.  It is found that the respondents’ failure to comply in a timely fashion with the Commission’s order in Docket #FIC 2002-334 was without reasonable grounds.

 

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

Within thirty days of the date of the mailing of the notice of final decision in this case, the respondents shall remit to this Commission a civil penalty payment in the amount of fifty dollars ($50.00) each.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2004.

 

 

___________________________________

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:

 

Allen Bacchiochi

12 Hopyard Road

Stafford Springs, CT  06076

 

Gordon J. Frassinelli, Jr., First Selectman,

Town of Stafford; and Michael D. Waugh,

Town Administrator, Town of Stafford

c/o Thomas J. Fiore, Esq.

14 West Stafford Road

Stafford Springs, CT  06076

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-191/FD/abg/01/16/2004