FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 10, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2006-607, Gail Anne Shea v. Planning and Zoning Commission, Town of Stonington (hereinafter “Docket #FIC 2006-607”).

 

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 written letter dated November 18, 2006, the complainant requested that the respondent permit her to inspect “all communications that were addressed to either the whole [respondent] or to just the Chair of the [respondent] since October 1, 2006 that are not part of the file of an application.”  The complainant also stated in her request that after she had reviewed such records, she might want to make copies of some of the documents.

 

3.  It is found that, by email dated November 22, 2006, the Town of Stonington’s  Director of Planning, who acts in a staff role to the respondent, acknowledged receipt of the complainant’s request, and invited her “to review the [respondent’s] log and file.”

 

4.  It is found that, by email dated November 22, 2006, the complainant responded to the director of planning’s email described in paragraph 3, above, asking for clarification as to whether the log file contained the information the complainant was requesting.

 

5.  It is found that, by email dated November 22, 2006, the director of planning replied to the complainant’s email described in paragraph 4, above, stating that the file contained everything forwarded to the respondent’s office or handed to the respondent’s staff directly in connection with submissions to the respondent.  The director of planning further indicated that all of the information requested by the complainant might not be included in the log file since he did not have access to the chairman’s personal (home) email account.

 

6.  It is found that, by email dated November 24, 2006, the complainant wrote to both the director of planning and the chairman of the respondent (hereinafter “chairman”), requesting to be told when all the requested communications were compiled.

 

7.  It is found that, by email dated November 25, 2006, the chairman replied to the complainant’s email described in paragraph 6, above, stating that in his opinion, private communications to the chairman that do not involve an application pending before the respondent or a violation, at the time of the communication, are not covered by the FOI Act and further, that communications to members of the respondent who are also members of the same political party are likewise not subject to the FOI Act.

 

8.  It is found that, by email dated December 1, 2006, the complainant responded to the chairman’s email described in paragraph 7, above, stating that her previous request for communications was outstanding and that she awaited word concerning when the requested records described in paragraph 2, above, would be available for her review.

 

9.  It is found that, by email dated December 3, 2006, the chairman replied to the complainant’s email described in paragraph 8, above, indicating that he wished to only receive FOI requests through the director of planning.  The chairman also stated that he believed that he had complied with the complainant’s request.

 

10.  It is found that after subsequent email exchanges between the complainant and the director of planning between December 3 and December 5, 2006, the complainant went to the Stonington Town Hall to inspect the file that was compiled by the respondent.  The complainant then copied particular records from such file.

 

11.  By letter dated and filed December 22, 2006, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide her with access to all of the records responsive to her request.

 

12.  Section 1-200(5), G.S., defines public records as:

 

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.

13.  Section 1-210(a), G.S., provides in relevant part that:

 

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.

 

            14.  The complainant contends that additional records must exist that have not been provided to her.  The respondent contends that it has provided all records it has on file to the complainant and that communications sent to the chairman’s personal home computer that do not involve an application or violation of a zoning regulation are not public records.   The respondent further contends that the chairman is not a public agency.

 

15.  The chairman testified at the hearing on this matter that he does not believe that communications sent to him at his private home email account that do not relate to pending applications are public records.  Rather, he believes that emails sent to him concerning planning and zoning matters that do not so relate are not subject to the FOI Act, since he is not acting in his role as chairman with regard to such matters, is merely serving the public and is simply providing his expertise on such issues. 

 

            16. Contrary to the respondent’s assertion, the chairman is a public agency within the meaning of §1-200(1), G.S, which includes any town “official.” Further, the respondent’s interpretation of what constitutes a public record is far too narrow.   Clearly the definitions set forth in §§1-200(5) and 1-210(a), G.S., encompass more than what the respondent claims, since the definitions refer to “all data or information relating to the conduct of the public’s business” and “all records maintained or kept on file by a public agency,” and without any limitation as to where such records reside.

 

17.  The Commission takes administrative notice of paragraph 20 in Docket  #FIC 2006-607, which reference communication related to the conduct of the public’s business that was received by the chairman during the time period requested herein and was apparently obtained by the complainant from another source.  It is further found however, that in this case, based upon the direct testimony elicited at the hearing on this matter, the chairman did not receive any communication, other than as described in paragraph 20 in Docket # FIC 2007-607 concerning planning and zoning matters.  The Commission credits such direct testimony provided under oath. 

 

18.  Since the complainant has access to all records responsive to her request, it is concluded, therefore, that the respondent did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S, under the very specific facts and circumstances of this case.

            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.

 

            2.  The Commission has great concern about the chairman’s testimony in this matter regarding the definition of public records.  The Commission cautions the respondent that although it was not found to have violated the FOI Act in this case, the Commission strongly urges the respondent to set clearer standards concerning what constitutes a public record and to consult the FOI Commission staff to ensure compliance with the FOI Act and to avoid future violations in this regard. 

 

3.  The Commission further advises that the use of private or home computers by public agencies to conduct public business opens such public officials up to potential public scrutiny, including subjecting such public officials’ home computers to forensic examination  (See Docket #FIC 2005-408, Richard Rowlenson and Gemini Networks Inc. against John Fonfara, Co-Chairman, State of Connecticut, Connecticut General Assembly, Energy and Technology Committee).  The Commission recommends the use of municipal email accounts to conduct public business, which accounts can be designed to make them accessible from any computer with internet access.  Contrary to the statements at the hearing on this matter by the chairman, taking such steps should make life easier, rather than harder, for public officials.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 2007.

 

 

________________________________

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:

 

Gail Anne Shea

197 River Road

Pawcatuck, CT 06379

           

Planning and Zoning Commission,

Town of Stonington

c/o Thomas J. Londregan, Esq.

Conway & Londregan

38 Huntington Street

New London, CT 06320

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-679FD/paj/11/1/2007