FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 5, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  As a preliminary matter, at the hearing on this matter, a motion was made to quash subpoenas duces tecum served on Michael Burke, Paula Schwartz and Jean Achille issued by the complainant; and the complainant moved for a continuance of the matter.  At that time, the Hearing Officer granted the motions to quash with respect to the appearance of Michael Burke, Paula Schwartz and Jean Achille and denied the complainant’s motion for a continuance of the 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 on May 9, 2007, the complainant arrived at the respondent’s offices during regular business hours and at that time requested that the respondent provide him with access to a policies and procedures manual relating to the Regional School District #10 (hereinafter “requested record” or “manual”).

 

3.  It is found that the respondent denied the complainant access to the requested record, as described in paragraph 2, above.  It is also found that the respondent asked the complainant to put the request described in paragraph 2, above, in writing, which he did.  The respondent also informed the complainant that he would have to make an appointment to view the manual, and that his viewing would have to be supervised and observed by a staff member.  The respondent also offered to provide the complainant with copies of specific policies without an appointment, if the complainant would identify which policies he was requesting.  Furthermore, the respondent suggested that the complainant might want to view the requested record at the first selectmen’s office or the public library.

 

4.   By letter dated and filed May 24, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by requiring an advance appointment to inspect the requested record. The complainant requested that the Commission impose a civil penalty upon the respondent.

 

5.   Section 1-200(5), G.S., defines "public records or files" to mean:

 

[a]ny 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.

 

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

 

[e]xcept 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…Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place….

 

7.  Section 1-212(a), G.S., provides, in relevant part:

 

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

8.   It is concluded that the requested records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

9.  It is found that pursuant to the respondent’s request, the complainant submitted a handwritten letter dated May 9, 2007, to the respondent requesting access to the requested record, as described in paragraph 2, above, which stated:

 

This is a request for access to the policies and procedures under which the Board of Education operates for meetings, hearings and generally as an organization.  Thank you.

 

Please do not be concerned about length of the material as I am interested in the full set of rules, policies and procedures.

 

10.  It is found that the complainant did not seek an appointment to review the manual after the time of the request described in paragraph 2, above, despite the fact that the complainant interacted with the respondent on several occasions since such time.

 

11.  By letter dated May 19, 2007, the respondent reiterated his offer to provide the complainant with copies of the policies he wished to view, if he would identify them.

 

12.  It is further found that on June 6, 2007, the complainant filed another written request to view the manual. In this regard, he arrived at the respondent’s office without an appointment.  The respondent again explained that the complainant would need to make an appointment to view the manual.  The manual was in the office of Paula Schwartz, Superintendent, Regional District #10, and the respondent did not want to interrupt her at the time the complainant sought to view the manual.

 

13.  It is found that the respondent offered to allow the complainant to view his manual at the time the complainant appeared on June 6, 2007, but explained that his copy was not complete.

 

14.  By letter to the complainant dated June 7, 2007, the respondent stated in relevant part:

 

As discussed in previous communications and when you arrived unannounced yesterday, in order to review the policy book we asked that you set up an appointment in advance.  I am confirming that appointment for Monday, June 11, at 3:00 p.m. in my temporary area in the Learning Center.

 

15.  It is found that the complainant made an appointment to view the manual with the respondent on June 11, 2007.  The complainant did view the manual on that date, requested copies of certain policies, and they were mailed to him on June 12, 2007, the following day.

 

16.  It is found that the records provided to the complainant as described in paragraph 15, above, comprise the records that are responsive to the complainant’s request at issue herein.

 

 

17.  With respect to the allegation described in paragraph 4, above, the respondent contends that it is his practice to require anyone who requests a record to make an appointment prior to providing access to inspect such public record.

 

18.  With respect to the allegation described in paragraph 4, above, it is found that on May 9, 2007, the respondent did not provide the complainant with access to inspect the requested records.  It is also found that the respondent’s refusal was based on the fact that the complainant had not made an appointment.

 

19.  It is concluded that the respondent’s refusal to provide the complainant with access to inspect the requested records because the complainant had not made an appointment violated the FOI Act, as alleged in the complaint.

 

20.  It is further concluded, that the respondent’s general position or policy that an appointment is required before one is permitted access to inspect the public record amounts to an illegal precondition on the public’s right to access public records promptly during regular business hours.  Such a policy amounts to a rule or regulation that conflicts with the provisions of §1-210(a), G.S., and diminishes or curtails the rights granted by such provision.

 

21.  The complainant maintains that the respondent failed to provide the records promptly.

 

22.  With respect to the allegation described in paragraph 21, above, it is found that the complainant is entitled to inspect public records promptly during regular business hours, which is a requirement that must be determined on a case by case basis and that depends on the nature of the request.

 

23.  It is found that, under the facts and circumstances of this case, the respondent unduly delayed the complainant’s access to inspect the requested records.

 

24.  It is concluded, therefore, that the respondent denied the complainant prompt access to inspect the requested records on May 9, 2007, and thereby violated the promptness provision of §1-210(a), G.S., as alleged in the complaint.

 

25.  It is concluded that nothing in §1-210(a), G.S., requires that a request to inspect public records be reduced to writing.

 

26.  It is also found that, pursuant to §1-212(a), G.S., a public agency is only permitted to require a written request when the request is for a copy of a public record.

 

27.  It is further found that the complainant clearly requested access to inspect the requested records, and it was not until the time he may have requested copies that he could have been required to put his request in writing.

 

28.  It is concluded therefore that the respondent violated §§1-210(a) and 1-212(a), G.S., by requiring the complainant to put his request to inspect the requested record in writing.

 

29.  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.

 

            30.  The Commission declines to consider the imposition of civil penalties in this matter.

 

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

1.      Henceforth, the respondent shall strictly comply with the promptness, accessibility and the inspection provisions of §§1-210(a) and 1-212(a), G.S.

 

 

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

 

Frederick A. Boland

45 Pineridge Drive

Harwinton, CT 06791

           

Michael Landry, Assistant

Superintendent of Schools,

Regional School District # 10

c/o Christine L. Chinni, Esq.

Chinni & Meuser LLC

30 Avon Meadow Lane

Avon, CT 06060

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-311FD/paj/12/19/2007