FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 13, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts 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), G.S.

 

2.      It is found that, by letter dated September 15, 2007, the complainant sent the respondent the following request: 

 

copies of all email made, sent or received by you during the last six months regarding the property at 135 Scott Hill Road, Bozrah, Connecticut, and/or concerning Walter Chmurynski, Michael Chmurynski, and/or Anne Chmurynski.  This request includes, but is not limited to, any such email sent to Thomas Weber, to the Bozrah Town Planner, to the Bozrah Planning and Zoning Commission, and/or to any of its individual members.

 

3.      It is found that, by letter dated September 18, 2007, the respondent acknowledged the complainant’s request, but stated that the only document that he had available, which was not subject to the attorney client privilege, was sent to Thomas Weber, the town’s Zoning Enforcement Officer. 

 

4.      By letter dated September 24, 2007 and filed October 1, 2007, the complainant appealed to the Commission, alleging that the respondent’s failure to provide documents responsive to his request for records violated the Freedom of Information Act (the “FOI Act”). 

 

5.      It is found that Keith Robbins was the first selectman for the Town of Bozrah when the complainant made his request for records described in paragraph 2, above.

 

6.      It is found that William E. Ballinger became the first selectman for the Town of Bozrah on November 20, 2007 following the complaint in this matter, and, at the time of the hearing in this matter, Mr. Ballinger continued to be the first selectman for the Town of Bozrah. 

 

7.      Section 1-200(5), G.S., provides:

 

“Public records or files” means 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 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

8.      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 . . . (3) receive a copy of such records in accordance with 1-212.

 

9.      Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

10.  It is concluded that, to the extent that records exist that are responsive to the complainant’s request described in paragraph 2, above, such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

11.  It is found that, in response to his request described in paragraph 2, above, the complainant was not provided with any records by either Mr. Robbins or Mr. Ballinger.

 

12.  It is found that, in response to a separate request for records from the complainant to Mr. Weber, the complainant received copies of two e-mails, both of which were sent to Mr. Weber from Mr. Robbins.  The first e-mail was dated August 24, 2007, and the other was dated August 27, 2007. 

 

13.  It is found that both of the e-mails referenced in paragraph 12, above, were responsive to the complainant’s request described in paragraph 2, above. 

 

14.  It is found that, upon learning of the complainant’s request described in paragraph 2, above, Mr. Ballinger reviewed all of the files, including the electronic files, that were located in the office of the first selectman when he assumed office. 

 

15.  It is found that Mr. Ballinger’s search referenced in paragraph 14, above, did not lead to the discovery of any responsive records. 

 

16.  It is found, however, that Mr. Ballinger did not review records that may reside on the computer that was used by Mr. Robbins in the course of his duties as first selectman because Mr. Robbins took the computer with him when he left his position as first selectman. 

 

17.  Mr. Ballinger testified that he had no knowledge as to whether the computer Mr. Robbins took with him, or any home computer that Mr. Robbins may have worked on, contain any records responsive to the complainant’s request described in paragraph 2, above. 

 

18.  While Mr. Robbins submitted an affidavit in this matter stating that, other than the two e-mails already provided to the complainant by Mr. Weber, he had no other documents responsive to the complainant’s request, he did not appear at the hearing in this matter. 

 

19.  Based on the foregoing, it is concluded that the respondent violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with, at a minimum, the e-mails described in paragraphs 12 and 13, above.

 

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

 

1.  The respondent is ordered to retrieve all of the public records in Mr. Robbins’ possession.

 

2.  In complying with paragraph 1 of the above order, the respondent shall forthwith directly communicate with Mr. Robbins, and inquire whether there are any other additional records in his possession, including electronic records, that are responsive to the complainant’s request described in paragraph 2, above.  If, after such inquiry, additional responsive records are located, the respondent shall forthwith provide a copy of such records to the complainant.  If no responsive records are located, the respondent shall provide the Commission and the complainant with an affidavit detailing his action to secure additional records, including the scope, duration and results of the search for such records in the former first selectman’s possession. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 14, 2008.

 

________________________________

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:

 

Walter Chmurynski

c/o Jon B. Chase, Esq.

Richard S. Cody, P.C.

34 Church Street

Mystic, CT 06355

           

First Selectman,

Town of Bozrah

c/o Jeffrey T. Londregan, Esq.

Conway & Londregan, P.C.

38 Huntington Street

New London, CT 06320

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-537FD/paj/5/21/2008