FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on November 20, 2003, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with Docket #FIC 2003-226, David R. Jacobs v. Branford Police Commission et al.; Docket #FIC2003-227, David R. Jacobs v. Branford Police Commission et al; and Docket #FIC 2003-228, David R. Jacobs v. Branford Police Commission et al.

 

            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 received and filed May 15, 2003, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”)  Act by not complying with his April 24, 2003 request for certain records, and requesting that the maximum civil penalty be levied against the individual respondents.

 

3.  It is found that by letters dated April 24, 2003 the complainant requested copies of all polices adopted by the Branford Board of Police Commissioners (the “Board”) since March 1, 1989 to the present; and all records involving any discussion of his reappointment to the Board from September 1, 2003 [sic] to the present, including “a list of all meetings or discussions, names of persons involved, voice mail, e-mail, faxes, video tape, audio tape, computer records, hand-written notes, typed notes, memoranda, calendars, pictures, photocopies phone logs, phones messages and PDA’s.”

 

4.  It is found that the respondent replied on June 14, 2003, indicating that all polices adopted by the Board were contained in the minutes of the meetings of the Board, which were available for his review, and that most polices were implemented through general orders from the chief of police, which were collected in a loose-leaf notebook possessed by complainant as a member of the Board; and that there were no records involving discussions of his reappointment to the Board from September 1, 2002 to the present.

 

5.  It is found that the complainant is seeking copies of policies adopted by the Board that are not contained in the minutes of the meetings of the Board.  That is, the complainant maintains that there are policies, such as a policy concerning speaking to the press, which have not been formally adopted by the board and reflected in its minutes.

 

6.  It  is found that, while there may be unwritten policies of the Board, there are no written policies that are not contained in the Board’s minutes.

 

7.  It is also found that while there were likely conversations between Board members, and between Board members and the public, concerning the complainant’s reappointment, which was apparently a subject of some controversy, there are no records of those conversations other than the record described in paragraph 11 of the findings, below.

 

8.  Section 1-200(5), G.S., provides:

 

    “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

9.  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 (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. 

 

10.  It is found that three members of the respondent board of police commissioners met with the Branford first selectman in his office on February 19, 2003 to voice their opposition to the reappointment of the complainant.  (The propriety of this meeting is addressed in Docket #FIC 2003-226, David R. Jacobs v. Branford Police Commission et al.).

 

11.  It is found that the respondents’ only possible record of that meeting may be a calendar notation on respondent commissioner Grossman’s personal digital assistant (“PDA”).

 

12.  It is concluded that the calendar notation is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  Section 1-211(a), G.S., provides in relevant part:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. 

 

14.  It is found that the respondent Grossman backs up his PDA to a personal computer, and could reasonably have made a copy of the calendar notation pertaining to the February 19, 2003 meeting, but did not do so.

 

15.  It is concluded that the respondent Grossman violated §1-211(a), G.S., by not providing the complainant of the calendar notation recorded on his PDA concerning the February 19, 2003 meeting.

 

16.  Section 1-206(b)(2), G.S., provides in relevant part:

 

… upon 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. 

 

17.  It is found that the respondent Grossman did not provide a copy of the calendar notation on his PDA because it did not occur to him.

 

18.  It is found that the complainant had expressly requested copies of records kept on PDA’s.

 

19.  It is concluded that commissioner Grossman’s violation of §1-211(a), G.S., was without reasonable grounds, within the meaning of §1-206(b)(2). 

 

20.  However, the Commission in its discretion declines to impose a civil penalty in this case. 

 

 

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

 

            1.  The respondent commissioner Grossman shall forthwith provide to the complainant a copy of any possible record identified in paragraph 11 of the findings, above. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 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:

 

David R. Jacobs

55 Swift Street

Branford, CT  06405 

 

Jon Grossman, Chairman,

Board of Police Commissioners,

Town of Branford;

Daniel Bullard,

Joanne McGuigan,

John Mooney,

Bruce Morris, and

Neil Velleca, as members,

Board of Police Commissioners,

Town of Branford; and

Board of Police Commissioners,

Town of Branford

c/o Carolyn J. Vacchiano, Esq.

Wiggin & Dana LLP

One Century Tower

P.O. Box 1832

New Haven, CT  06508-1832

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-178/FD/mes/05/13/2004