FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on September 12, 2005, at which time the complainants and the respondent appeared 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.  It is found that, by facsimile dated December 16, 2004, the complainants requested that the respondent’s President and Chief Executive Officer provide them with the following records:

 

a.       any and all letters assuring any mortgage holders that the respondent  would not file for bankruptcy;

 

b.      minutes of the respondent’s December 9, 2004 board

      of directors meeting;

 

c.       documentation proving current insurance for property,

damage and liability;

 

d.      a copy of the respondent’s automobile lease with

      Chrysler Financial; and

 

e.       any correspondence with potential new developers for

the Windham Mills Technology Center project

 

(hereinafter “requested records”).

 

2.  It is found that, by letter dated December 22, 2004, the respondent denied the request, on the basis that the respondent filed for bankruptcy on December 15, 2004.  In the December 22, 2004 denial letter, the respondent further informed the complainants that the bankruptcy filing resulted in an automatic stay of the complainants’ request, and also the initiation of any administrative action against the respondent with regard to the denial of such request.

 

3.  Thereafter, by letter dated and filed on January 5, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI") Act by denying them a copy of the requested records.

 

4.  Pursuant to the order of the court, the Commission’s request for relief from the automatic stay was granted.  (In Re: 04-23619, Windham Mills Development Corporation dba Windham Mills Technology Center, Debtor, Freedom of Information Commission, Movant, July 28, 2005, Krechevsky, J.).

 

5.  The respondent claims that: a) Windham Mills Development Corporation (hereinafter “WMDC”) is not a “public agency” and therefore, not subject to the FOI Act, and b) that P. A. 00-136, which amended the §1-200(1), G.S., definition of “public agency” to include an “implementing agency” as defined by §32-222 is constitutionally invalid, as it contains an irrebuttable presumption and violates due process.

6.  The Commission recently reviewed both claims in contested case docket #FIC 2003-386, Matthew L. Brown and The Willimantic Chronicle v. President and Chief Executive Officer, Windham Mills Development Corporation (hereinafter “FIC 2003-386”) (appealed, Windham Mills Development Corporation v. Freedom of Information Commission et al., CV-04-4004185, appeal withdrawn June 6, 2005).

7.  Because the respondent’s claims in this case are identical to those raised and addressed in FIC 2003-386, the Commission takes administrative notice of the record and final decision in FIC 2003-386, and concludes here, as it did in FIC 2003-386, that WMDC is a “public agency” for purposes of the FOI Act, and that the Commission lacks jurisdiction to decide the constitutional claim raised by the respondent.

8.  With respect to the records requested, §1-200(5), G.S., provides, in relevant part:

 

“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., further 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 …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.   

10.  Section 1-212(a), G.S., further provides, in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” 

11.  It is found that the respondent maintains records that are responsive to the complainants’ request.

12.  It is concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

13.  The respondent makes no claim of exemption.  The respondent’s sole claims are those as described in paragraph 5, above.

14.  Consequently, it is concluded that the respondent violated §1-210(a), G.S., when it failed to provide the complainants with a copy of the requested records.

            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 complainants with a copy of the requested records.

 

2.  The Commission notes that, at the hearing in this matter, because of the unusual circumstance in this case whereby the respondent has filed for bankruptcy, counsel for the respondent represented that in their capacity as Commissioners of the Superior Court they will each take the steps necessary to secure a copy of the records at issue in this case, and make such records available to the complainants upon the exhaustion of all court appeals.   

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2005.

 

________________________________

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:

 

Ron Robillard and the

Willimantic Chronicle

One Chronicle Road

Willimantic, CT 06226

 

Windham Mills Development

Corporation

c/o Evan S. Goldstein, Esq.

Reid and Riege, PC

One Financial Plaza

Hartford, CT 06103

and

Lisa Silvestri, Esq.

56 Arbor Street

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-005FD/paj/12/20/2005