FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Kenneth H. Kennedy, Jr., | |||
| Complainant | |||
| against | Docket #FIC 2005-135 | ||
|
Corporation Counsel, City of Hartford, |
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| Respondent | February 22, 2006 | ||
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 dated and filed on March 22, 2005, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by requiring him, a councilman of the City of Hartford (hereinafter “city”), to pay fifty cents per page for copies of records, and thereby denying him copies of such records.
3. The respondent contends that the Commission lacks subject matter jurisdiction to hear the complainant’s appeal because “there is no present allegation that the Respondent violated any provision of the Freedom of Information Act …rather, the …[complainant] seeks the determination of his rights under the FOIA".[1]
4. Section 1-206(b)(1), G.S., provides, in relevant part:
Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.
5. It is found that the complaint in this matter alleges a denial of the right to obtain copies of public records without charge pursuant to §1-212(d)(4), G.S.
6. It is concluded that the complainant has alleged a denial of a right conferred by the FOI Act, within the meaning of §1-206(b)(1), G.S., and therefore, the Commission has jurisdiction to entertain the complaint.
7. It is found that the complainant is a councilmember of the city who was elected to such office on November 4, 2003, for a term commencing January 1, 2004 to January 1, 2008.
8. It is found that, commencing in August 2004, the complainant made a series of requests to the respondent to be provided with numerous records.
9. It is found that the complainant renewed the August 2004 request by e-mail dated February 15, 2005, and directed such request to the attention of the city’s Deputy Corporation Counsel.
10. It is found that the respondent maintains records that are responsive to the complainant’s records requests at issue.
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 …(3) receive a copy of such records in accordance with section 1-212.
12. Section 1-212(a), G.S., provides that: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record”.
13. Section 1-212(d)(4), G.S., further provides that: “[T]he public agency shall waive any fee provided for in this section when:
The person requesting the record is an elected official of a political subdivision of the state and the official (A) obtains the record from an agency of the political subdivision in which the official serves, and (B) certifies that the record pertains to the official’s duties.
14. It is found that the complainant is an elected official, within the meaning of §1-212(d)(4), G.S. It is also found that the records at issue are records of the city in which the complainant serves, within the meaning of §1-212(d)(4), G.S.
15. The respondent concedes, and it is concluded, that the records at issue are public records within the meaning of §1-210(a), G.S.
16. The respondent also does not claim that any of the records at issue are exempt from disclosure pursuant to any federal law or state statute. In fact, it is found that the respondent has provided the complainant with access to inspect many of the requested records, as well as copies of some of the requested records without cost to the complainant. However, it is found that the respondent is now requiring payment from the complainant for copies of records that were produced, and for records to be produced in connection with the complainant’s records requests at issue.
17. At the crux of the complaint in this matter is the disagreement between the complainant and the respondent as to what “certifies that the record pertains to the official’s duties” means, within the meaning of §1-212(d)(4), G.S.
18. It is found that the complainant informed the respondent orally and by e-mail that the records requested pertain to his official duties as an elected official.
19. It is found that the respondent has declined to accept the complainant’s representation as indicated in paragraph 18, above, and contends that certification, within the meaning of §1-212(d)(4), G.S., requires that the complainant submit to the respondent a sworn written statement, signed by a notary public or a Commissioner of the Superior Court, stating that the requested records will be used in the complainant’s official duties. In this regard, the respondent upon receipt of such sworn statement intends to confirm with the city council or council committee, as appropriate, that the requested records do in fact pertain directly to business before the council or committee.
20. It is found that on or about August 2, 2004, the complainant received a letter from the President of Diggs Construction, LLC, the Program Manager for Phase 1 of the renovations of the Hartford Public Schools, along with a two-page unsigned document. It is found that the August 2, 2004 letter and the unsigned document appear to suggest possible irregularities surrounding the award of contracts by the Hartford School Building Committee.
21. It is found that the complainant’s records requests at issue directly pertain to his concern and inquiry into possible irregularities surrounding the award of contracts, and therefore, pertain to his duty as an elected official to respond to concerns and possible improprieties occurring within the city.
22. It is concluded that nothing in §1-212(d)(4), G.S., limits the “official’s duties” to include only business that is formally before the city council or business that has been formally assigned to a city council committee.
23. Consequently, it is concluded that the complainant has met the criteria set forth in §1-212(d)(4), G.S., and therefore, the respondent violated the FOI Act by requiring that the complainant pay fifty cents per page for copies 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. In the interest of ensuring clarity and greater understanding between the parties, and also to avoid the duplication of records being produced, the complainant shall forthwith, provide the respondent with a list of the records/ information contained in records, that he has not yet received from the respondent in response to his February 15, 2005 request.
2. The respondent shall forthwith, upon receipt of the list, described in paragraph 1 of the Order above, provide the complainant with copies of all records, responsive to the complainant’s February 15, 2005 request, at no charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 22, 2006.
________________________________
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:
Kenneth H. Kennedy, Jr.
Councilman, City of Hartford
550 Main Street
Hartford, CT 06103
Corporation Counsel,
City of Hartford
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-135FD/paj/2/27/2006