FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 13, 2003, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with docket #FIC 2003-447¸ Karen Emerick v. Board of Education, Glastonbury Public Schools.

 

            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.  By letter received and filed December 16, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by causing access to public records to be so severely restricted so as to deny access, by denying prompt access to public records, and by not maintaining public records in an accessible location.

 

3.  It is found that the complainant, together with a group of three other Glastonbury residents formed on April 8, 2003 (the “Glastonbury Residents Investigative Team,” or “Team”), began researching financial records for the fiscal years ending 2002 and 2003 at the respondent’s offices on May 6, 2003, and had a regular appointment each Monday morning at 11:00 a.m. to inspect purchase orders and related records for a period of three hours weekly. 

 

4.  It is found that the Team was researching how the respondent spent tax dollars, and that the investigation was commenced to demonstrate that the budget could be reduced without lowering the quality of education, by reducing waste and overhead, and increasing operating efficiencies.

5.  It is found that the respondent gave the complainant space in the basement of the respondent’s offices to inspect the records.

 

6.  It is found that the complainant’s schedule of appointments continued with few interruptions from May 6, 2003 until November 10, 2003.

 

7.  It is found that the previously good relationship between the Team and the respondent changed around November 21, 2003, when the respondent began to require that the Team’s visits be supervised at all times by an employee or designee of the respondent, that the complainant make a weekly appointment, that appointments be limited to two hours per week, and that the Team was to be prohibited from bringing and using a private photocopier.

 

8.  It is found that the complainant and the Team were denied access to inspect purchase orders and related records on November 17, December 8, December 15, December 22 and December 29, 2003. 

 

9.  It is found that the complainant and the Team’s access to the respondent’s records was subsequently limited to three days per month, instead of weekly visits, although this limitation necessarily falls outside the scope of the complaint, which was filed on December 16, 2003.

 

10.  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.

 

11.  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  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.

 

12.  It is concluded that the requested financial records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  The respondent maintains that its policies of reducing the complainant’s access rights by requiring an appointment and limiting the number of visits and the number of hours per visit were justified by security breaches that occurred during the Team’s visits, by inappropriate conduct toward the respondent’s staff, by the Team’s asking the respondent’s staff too many questions, by the Team misfiling records in a way that made the records inaccessible to the respondent, by the Team interfering with the work of the respondent, by the Team’s unauthorized use of the respondent’s copying machine, and by the necessity of precluding access for much of December 2003 either because the respondent was busy preparing its budget or because the offices were closed for the school vacation.

 

14.  The complainant maintains that the respondent’s reasons for limiting access were politically motivated, not based on any actual interference with the respondent’s functions, and that the respondent failed to provide prompt access to public records.

 

15.  The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

16.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.    

 

17.  It is found that the respondent was aware of the importance of the records to the complainant and the Team.

 

18.  It is found that the complainant was seeking to complete and publish a report on the respondent’s expenditures before a May 4, 2004 budget referendum.

 

19.  It is found that the Team was located in the basement of the respondent’s offices, away from the respondent’s staff, who were seldom seen; that the Team asked the respondent’s staff only about one question per weekly visit; and that only minimal time and personnel were required by the respondent to comply with the complainant’s requests.

 

20.  It is found that the respondent offered no credible evidence to prove that the Team interfered with the respondent’s business.

 

21.  It is found that the respondent offered no credible evidence to prove that members of the Team acted inappropriately toward the respondent’s staff; to the contrary, it is found that the respondent’s staff and members of the Team behaved courteously toward each other.

 

22.  It is found that members of the Team only infrequently asked the respondent’s staff to make copies, and that such copies were authorized by the respondent.

 

23.  It is found that, although members of the Team occasionally used the respondent’s copying machine to make their own copies, such copies were infrequent and were made at the request of the respondent’s staff as a way of reducing any inconvenience to the staff.  The fact that members of the Team sometimes followed the staff’s directions to make their own copies, rather than the superintendent of schools guidelines, was not a legitimate reason for the respondent to deny or restrict access to public records.

 

24.  It is found that the respondent offered no credible evidence to prove that the complainant or other members of the Team breached the security of the respondent’s offices.  In this regard, it is specifically found that the testimony of the superintendent of schools that her office had been entered by members of the Team was not credible.

 

25.  It is found that the respondent offered no credible evidence to prove that members of the Team misfiled documents, or caused the respondent’s records to be unavailable to the respondent.  While on a handful of occasions members of the Team attempted to correct mis-alphabetizing of documents, such occasions were rare and insignificant, and were quickly abandoned.  Specifically, it is found that members of the Team were careful to replace documents to their proper locations.

26.  It is found that the respondent offered no credible evidence to prove that it was necessary to exclude the Team from the respondent’s offices for most of the month of December.  Although the respondent was preparing its budget and school was in recess, the documents being inspected by the Team were not used in the preparation of the budget, the Team was not in the physical area that the budget was being prepared, no staff member involved in preparing the budget was interfered with by members of the Team, and the respondent’s offices were open during most of the month of December.

 

27.  The complainant maintains that prompt access to the respondent’s records was limited, not because of any of the reasons set forth by the respondent, but because the Team’s research, and publication of its findings, brought political pressure on the respondent beginning in October and November 2003.

 

28.  While it is not at all clear that such political pressure was the cause of the respondent’s actions, it is apparent that the justifications offered by the respondent to restrict the Team’s access were pretextual.

 

29.  Also, while it is not possible to delineate precisely what frequency and duration of access to the respondent’s records is reasonable, it is found that weekly three-hour visits were not unreasonable or burdensome to the respondent, and that the respondent did not have a credible reason for reducing those hours or the frequency of visits.

 

30.  In particular, it is found that the respondent failed to justify barring the complainant and the Team from inspecting public records at its offices for almost all of the month of December.

 

31.  Consequently, it is concluded that the respondent’s policy of significantly reducing the complainant’s access on and after November 17, 2003 violated §1-210(a), G.S.

 

32.  Nothing in this decision should be construed to conclude that the amount of access provided to the complainant prior to November 17, 2003 was a maximum amount of access that would in all circumstances satisfy the requirements of §1-210(a), G.S.

 

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

 

 

            1.  Henceforth the respondent shall strictly comply with the promptness requirement contained in §1-210(a), G.S.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2004.

 

________________________________

Petrea A. Jones

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:

 

                    Robert Marchand

175 Coldbrook Road

South Glastonbury, CT 06073

 

Board of Education,

Glastonbury Public Schools

c/o Richard Voigt, Esq.

McCarter & English LLP

CityPlace I, 185 Asylum Street

Hartford, CT 06103-3495

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2003-448FD/paj/10/15/2004