FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 31, 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 letter dated December 20, 2005 and delivered by certified mail, the complainant addressed a six part request to the respondent for a wide variety of records, including documents concerning work on Bogus Hill Road, Bogus Hill Tax District financial records, communications with the Girl Scout Council of Southwestern Connecticut, Inc. and related matters (the “requested records”). An agent for the respondent acknowledged receipt of the request letter on December 29, 2005.  

 

3.  By letter dated January 20, 2006 and delivered by certified mail, an agent for the respondent acknowledged the December 20, 2005 request, stating that: “we…are in the process of putting together the information.” The complainant acknowledged receipt of this letter on January 21, 2006.  

    

4.  By letter dated February 20, 2006 and filed with the Freedom of Information Commission (“FOIC” or sometimes the “Commission”) on February 23, 2006, the complainant appealed to the Commission, alleging that the respondent failed to provide the requested records, and requested that civil penalties be assessed against the respondent for violating the Freedom of Information Act (“FOIA”).

 

5.  Section 1-206, G.S., states in relevant parts:

 

(a) Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request…Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.

 

(b)(1)… A notice of appeal shall be filed within thirty days after such denial…. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken…..

 

(b)(2)… In addition, 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)

 

6.  It is found that there was no express denial at any time of the complainant’s request for records. To the contrary, the acknowledgement letter of January 20, 2006 expressed a willingness to provide the requested records. It is also found that the acknowledgement letter of January 20, 2006 was received before the original thirty day period expired (February 4, 2006), following a failure to comply with a request (January 5, 2006).

 

7.  It is concluded that the acknowledgement letter of January 20, 2006 extended the period during which a denial could be deemed to have taken place, the denial being deemed to take place four business days after the January 21, 2006 receipt of the acknowledgement letter. Given that the denial is deemed to have taken place after January 26, 2006, it is therefore concluded that the complaint filed on February 23, 2006 was within the thirty days required by §1-206(b), G.S., and that the Commission does have jurisdiction over the complaint.

      

8.  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. (emphasis added) 

 

9.  It is concluded that the requested records described in paragraph 2, above, and described more particularly in paragraph 13, below, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.  

 

10.  It is found that the respondent is president of a tax district, which includes sixty-five homes and 130 taxpayers. The tax district has a staff of one part-time secretary, who is compensated on an hourly basis. It is also found that the tax district is on a peninsula in a pond, and that many tax district officers are away during the winter months. During the winter of 2005-2006, it is found that the tax district board did not hold any meetings after October 29, 2005 until March 18, 2006.

 

            11.  It is found that following an FOIC decision in Docket #FIC 95-197, Joyce L. Bloom v. Terrence Facey, President, Bogus Hill Tax District, the tax district established a system wherein its records or copies thereof are maintained in a volume kept with the land records in the vault at the New Fairfield Town Hall. It is also found that an unpaid, volunteer clerk receives mail at the post office box, usually once per week during the off-season and brings the mail to the part-time secretary, who is also the secretary for the first selectman of the town of New Fairfield.   

 

            12.  It is also found that, as of the hearing date, the respondent had been president for less than twelve months. It is further found that, for security purposes, he maintained checkbooks and insurance policies at his own home. The respondent testified that, despite a surveillance camera, occasionally records subject to public inspection are found to be missing at the New Fairfield Town Hall. However, as of the hearing date, new procedures have been established for copies of the checkbooks and insurance policies to also be on file at the New Fairfield Town Hall.          

 

            13.  It is further found that the complainant received the requested records on April 27, 2006. It is also found that these 196 pages of records included copies of bank statements and cancelled checks, insurance policies, as well as an engineer’s report that was received by the respondent only on April 13, 2006.

 

            14.  Finally, it is found that the respondent billed the complainant sixty dollars ($60.00) for four hours of “administrative expenses” in connection with providing her the requested records. The complainant testified that some of the copies of the requested records she received were quite faint and difficult to read. It is also found that a few pages of the copies of the requested records provided to the Commission as evidence were quite faint and difficult to read.

 

            15.  Accordingly, it is concluded that the respondent violated the promptness requirements of the provisions of §§1-210(a) and 1-212, G.S., as alleged. It is also concluded that §1-212, G.S., does not include any allowance for billing for “administrative expenses” in connection with furnishing copies of public records.

 

            16.  It is also concluded that there was no denial of any FOIA right “without reasonable grounds” that would justify a civil penalty pursuant to §1-206(b)(2), G.S.           

 

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

 

            1.  The respondent shall provide the complainant, without additional charge, new copies of any records that are so faint that they are difficult to read.   

 

2.  Henceforth, the respondent shall, upon request, provide copies of non-exempt public records promptly.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 12, 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:

 

Joyce Bloom

17 Bogus Hill Road

New Fairfield, CT 06812

 

Allan Deutscher, President,

Bogus Hill Tax District

c/o Daniel E. Casagrande, Esq.

and Ted D. Backer, Esq.

Pinney Payne, PC

83 Wooster Heights

Danbury, CT 06810

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-080FD/paj/7/12/2006