FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 7, 2005, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.  The case caption was modified to reflect that both Nancy Burton and Connecticut Coalition Against Millstone filed the complaint in this matter. 

           

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.  It is found that, by e-mail dated July 26, 2005, the complainants informed the respondent and the Board of Selectmen, Town of East Lyme that: “[W]e understand that you have requested the Connecticut Department of Environmental Protection to take water samples near Hole-in-the-Wall and McCook’s Point Beach”.  The e-mail went on to request that the complainants be provided “the opportunity to review and/or copy all correspondence, e-mail communications, records, reports and data involving this sampling program in accordance with the provisions of the Freedom of Information Act” (hereinafter “FOI Act”).

 

3.  It is found that on or about August 23, 2005, the complainants obtained a copy of a July 21, 2005 letter from the Connecticut Department of Environmental Protection (“DEP”), hereinafter the “July 21, 2005 letter”.  It is found that the July 21, 2005 letter was authored by the respondent and directed to the Commissioner of the DEP.

 

4.  Having failed to receive any records from the respondent, the complainants, by letter of complaint postmarked and filed on August 25, 2005, appealed to the Commission, alleging that the respondent violated the FOI Act by failing to provide them with the July 21, 2005 letter.  The complainants requested that the Commission impose a civil penalty against the respondent because he withheld the July 21, 2005 letter from the complainants “with disregard for the law”.

 

5.  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.

 

6.  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”.

     

7.  It is found that the respondent maintained, or kept on file, the July 21, 2005 letter, at the time of the receipt of the complainants’ request.  It is concluded that such letter is a  “public record” within the meaning of §§1-210(a) and 1-212(a), G.S.

 

8.  It is found that the respondent did not provide the complainants with a copy of the July 21, 2005 letter.  It is also found that the respondent did not respond to the complainants’ request.

 

9.  The respondent first contends that the complainants’ request concerned a contemplated future water-sampling program, and that the July 21, 2005 letter was not responsive to the request.  The respondent next contends that the complainants only requested “an opportunity to inspect and [themselves] copy” records, and did not request that a copy be made by the respondent and sent to them.  

 

10.  With respect to the respondent’s first contention, it is found that, prior to the complainants having made their request to the respondent, they were engaged in a campaign for clean beaches within the town of East Lyme.  In this regard, the complainants publicly aired concerns that the beaches were contaminated, and that water sampling should be conducted, and provided the respondent and the town with certain information regarding chemicals and the alleged contamination. 

 

11.  It is found that after receipt of the information regarding contamination, described in paragraph 10, above, the respondent, wrote the July 21, 2005 letter to the commissioner of the DEP and indicated that: [“t]he Town of East Lyme is requesting that the CT DEP review the enclosed information provided by the …[complainants]  [Emphasis added].  The respondent also mentioned in the July 21, 2005 letter that the Connecticut Department of Public Health does not monitor bathing beaches for chemicals that are indicated in the …[enclosed] material”.

 

12.  In light of the sequence of events that transpired, as described in paragraphs 10 and 11, above, it is found that the July 21, 2005 letter was responsive to the complainants’ request.

13.  With respect to the respondent’s second contention, our Supreme Court has made clear that: “[I]t would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched.”  Perkins v. Freedom of Information Commission, 228 Conn. 158, 167 (1993).  The Supreme Court, in disagreeing with the trial court in Perkins, also said: “[T]he trial court's contrary conclusion relied on distinctions that are overly formal and legalistic in light of the public policy expressed by the FOIA. The overarching legislative policy of the FOIA is one that favors the open conduct of government and free public access to government records.  As we have repeatedly noted, our construction of the FOIA must be guided by the policy favoring disclosure . . . ."  Perkins at 166, 167 (without internal citations).

14.  It is found that the complainants did not specifically request, as the respondent suggests, that a copy of records be made and sent to them.  Rather, it is found that the complainants simply submitted a typical request to the respondent for “public records”, and the usual and reasonable response to any such request would have been for the respondent, or his designee, to follow-up with the complainants, and indicate whether such records exist, and if so, how they may be accessed, i.e., the parties would work out the details as to how precisely access to the records would be obtained.  For example, the parties would decide whether the complainants should visit the respondent’s office to inspect such records, or if instead, the respondent would make a copy of any responsive records, which the complainants would pick up, or which could be sent to the complainants.  It is further found, that if the respondent thought that the complainants’ request was unclear, the respondent, upon receipt of the request, could have, and should have sought clarification from the complainants.  However, the respondent did not do so.  

15.  Based upon the foregoing, it is concluded that the respondent violated the FOI Act when he withheld the July 21, 2005 letter from the complainants.

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.  [Emphasis added].

17.  With respect to the request for a civil penalty, it is concluded that the violation described in paragraph 15, above, was without reasonable grounds.

18.  Notwithstanding the conclusion reached in paragraph 17 of the findings, above, the Commission in its discretion declines to impose a civil penalty in this matter.

No order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 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:

 

Nancy Burton and Connecticut

Coalition Against Millstone

147 Cross Highway

Redding Ridge, CT 06876

 

Wayne Fraser, First Selectman,

Town of East Lyme

c/o Edward B. O’Connell, Esq.

Waller, Smith & Palmer, PC

52 Eugene O’Neill Drive

New London, CT 06320

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-411FD/paj/6/29/2006