FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                                           

            The above-captioned matter was heard as a contested case on March 9, 2006, at which time the complainant 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.  The respondent is a public agency within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that by an email dated November 9, 2005, and again in greater detail by another email dated November 16, 2005, the complainant made a request to the respondent for “copies of all documents, that is, timesheets, attendance records, notes, etc., of any kind kept by you, [Mr. Fred] Cratty, HR (sic), or Payroll (sic), that would show on which dates Mr. Cratty USED his comp-time during the period 1/1/98 to the present, and the number of hours used on each occasion” (solid capitalization in the original) (the “requested records”). 

 

3.  By an email dated November 16, 2005, the respondent stated that: “[t]he University has provided you with all the documents responsive to you (sic) request.”

 

4.  By letter dated November 22, 2005 and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on November 30, 2005, the complainant appealed to the Commission, alleging that the respondent’s withholding or improper destruction of the requested records violated the Freedom of Information Act (“FOIA”). The complainant also requested the imposition of “appropriate civil penalties”.

 

5.  It is concluded that the State of Connecticut Public Records Administrator, and not this Commission, has jurisdiction over the retention and destruction of public records, pursuant to §11-8a, G.S. Accordingly, the allegation regarding destruction of records shall not be further addressed herein.

    

6.  Sections 1-210(a) and §1-212(a), G.S., state, respectively, in relevant parts:

 

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 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 was employed by Western Connecticut State University (the “University”) for the first time when he assumed his current position on July 13, 1998. It is also found that, at the time the respondent assumed his position, there was no formal practice for documenting the accrual or usage of compensatory time at the University. It is further found that, within eighteen months of the respondent assuming his position, he implemented a system, with appropriate forms, for “SUOF” and management confidential employees to record both the accrual of compensatory time and its approved usage.

 

8.  It is also found that on or about July 20, 1998, the respondent, who had been in his current position at that time for approximately seven days, initialed his approval on a memorandum addressed to him from Fred Cratty, dated July 20, 1998, for Mr. Cratty to use “earned” compensatory time towards a vacation, commencing two weeks thereafter (the “memorandum” or sometimes “the memorandum described at paragraph 8, above”). It is further found that the respondent discussed Mr. Cratty’s request with the complainant, who was the director of human resources. At the hearing, the complainant stated that Mr. Cratty’s request was consistent with current practice at that time. It is further found that the respondent informed Mr. Cratty that it was his expectation that Mr. Cratty would not accrue any more compensatory time going forward.

 

9.  It is found that the complainant has made a series of records requests to the respondent, including on July 20, 2005, October 7, 2005, as well as the dates set forth at paragraph 2, above. Additional subsequent requests were addressed in FIC 2005-601, Paul N. Cayer v. Charles Spiridon, Dean of Human Resources, State of Connecticut, Western Connecticut State University; James Schmotter, President, State of Connecticut, Western Connecticut State University; and Joseph Jordano, Assistant Attorney General, State of Connecticut, Office of The Attorney General.

 

10.  It is also found that, in response to the initial July 20, 2005 request, which focused on the accrual of compensatory time and did not become the basis for any complaint to the Commission, the respondent provided the complainant with the memorandum described at paragraph 8, above. It is further found that, following the July 20, 2005 request, the respondent asked Mr. Cratty if he had any documents responsive to the request, requesting that he check his calendars and any other general files that he maintained. Mr. Cratty said he would look, and he came back and delivered the memorandum to the respondent. The respondent also had his administrative assistant, Peggy Boyle, do a general search of the respondent’s files that might contain documents within the scope of the request.

 

11. It is found that, when the complainant made his October 7, 2005 request for records, he alleged that there was another memorandum dated during 1999 that was similar in content to the memorandum described at paragraph 8, above. It is found that in July and again in October 2005, the respondent contacted the payroll department to determine if they maintained any documents within the scope of the request. (The payroll department assumed administration of the compensatory time system in 2003 or 2004.) Moreover, the respondent testified under oath that he did not ever receive a memorandum dated during 1999 that was similar in content and addressed to him, like the memorandum described at paragraph 8, above.

 

12.  It is found that in 1999 the respondent asked the complainant whether Mr. Cratty was entitled to compensatory time, based upon his work on the “Banner System” computer program. The complainant said that Mr. Cratty was not so entitled, and the respondent orally warned Mr. Cratty not to attempt to accrue compensatory time again, as he had in 1998. Both parties herein agree that the warning to Mr. Cratty was oral and did not result in the creation of a record.                 

 

13.  At the hearing, the complainant argued that a certain passage in a deposition of Mr. Cratty (Complainant’s Exhibit 1, p. 56, lines 17-22) suggested that there was a memorandum dated during 1999 that was similar in content to the memorandum described at paragraph 8, above. It is found that the cited passage in the deposition refers to a “conversation” and does not suggest the creation of any record, including but not limited to a memorandum dated during 1999 that was similar in content to the memorandum described at paragraph 8, above. Indeed, the cited passage suggests Mr. Cratty never accrued compensatory time again, which supports the respondent’s contention that he does not maintain any additional records concerning the use of compensatory time.

 

14.  It is concluded that the requested records, to the extent that they exist, are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-211(a), G.S.  

 

15.  It is concluded that the respondent performed a diligent search for the requested records. Prior to the filing of the complaint herein, the respondent provided the complainant with a copy of the memorandum described at paragraph 8, above. It is the  only record produced by a diligent search that was within the scope of the request set forth at paragraph 2, above.

 

16.  Therefore, it is finally concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., when he was unable to provide additional requested records to the complainant. Accordingly, there are no grounds herein for the assessment of a civil penalty against the respondent.

 

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

 

1.  The complaint is hereby dismissed.

 

 

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:

 

Paul N. Cayer

173 Old Burrville Road

Torrington, CT 06790

 

Charles Spiridon, Dean of Human

Resources Management, State of Connecticut,

Western Connecticut State University

181 White Street

Danbury, CT 06810

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-580FD/paj/7/3/2006