FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Andy Thibault,  
  Complainant  
  against   Docket #FIC 2007- 418

Paula Schwartz, Superintendent

of Schools, Regional School

District #10,

 
  Respondent June 11, 2008
       

  

The above-captioned matter was heard as a contested case on January 4, 2008, 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 2007-421; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10 and Docket #FIC 2007-458; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10.  The Commission takes administrative notice of the administrative record in the aforementioned contested cases.

 

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.      By letter dated August 1, 2007, the complainant made the following request to the respondent:

 

a.       “copies of any and all billing records related to legal work that has been farmed out to the firm Howd & Ludorf and/or your regular counsel regarding alleged civil rights violations by you and your administration against students including Avery Doninger.  These records include but are not limited to retainer agreement, indemnifications clause, retainer check and other checks and invoices; also, meeting minutes, memorandums, phone logs and e-mails regarding the administration’s handling of these matters;” and

 

b.      “copies of the write-in votes submitted for Ms. Doninger and any… related records including memos and e-mails.”

 

The complainant indicated in his letter that failure to comply promptly with his request would result in a formal complaint, a request for subpoenas of witnesses, and a request for a one thousand dollar fine. The complainant further indicated that by prompt he meant “immediately” unless the respondent could “demonstrate to the FOI Commission that complying with his request interfered with the normal course of business.”

 

3.      By letter dated and filed on August 3, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his August 1, 2007 records request.  The complainant requested the imposition of a one thousand dollar civil penalty against the respondent and an order that she attend an FOI workshop.

 

4.      Section 1-200(5), G.S., provides in relevant part that:

 

“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 section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

5.      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 . . . receive a copy of such records in accordance with section 1-212. 

 

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

 

7.      It is found that, to the extent they exist and are maintained by the respondent, the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      With respect to the complainant’s request described in paragraph 2a, above, it is found that Howd & Ludorf is a private law firm with offices in Hartford, Connecticut and Wellesley, Massachusetts and that it was retained by Massamont Insurance Agency, the insurance carrier of Regional School District #10 (hereinafter “the school district”), to represent the respondent, the school district, and a Karissa Niehoff (a high school principal), in the federal court case of Doninger v. Schwartz, Niehoff, et al. (hereinafter “the federal court case”).

 

9.      It is found that by letter dated August 1, 2007, from the respondent’s counsel, the complainant was informed that the school district does not maintain any “billing records related to legal work that has been ‘farmed out’ to the firm Howd & Ludorf . . .” nor does it maintain a retainer agreement, indemnification clause, retainer check or any other checks or invoices, regarding the federal court case.

 

10.  It is also found that neither the respondent, nor the school district, are parties to the retainer agreement between Massamont Insurance Agency and Howd & Ludorf and were never provided with a copy of that agreement or any records related to that agreement and do not maintain any records in that regard.

 

11.   It is found that neither the respondent, nor the school district, were sent bills for the services rendered by Howd & Ludorf pursuant to the retainer agreement or any records related to such bills, and do not maintain any records in that regard.

 

12.    It is also found that neither Massamont Insurance, nor Howd & Ludorf, is a public agency; therefore, neither is subject to the disclosure provisions of the FOI Act.

 

13.    With respect to the complainant’s request for meeting minutes, memorandums, phone logs and e-mails regarding the school district’s “handling” of the federal court case, it is found that neither the respondent or the school district are “handling” the federal court case and that they do not maintain any meeting minutes, memorandums, phone logs or e-mails in that regard.  It is also found that the complainant was so informed by letter dated August 1, 2007, from the respondent’s counsel.

 

14.   With respect to the complainant’s request described in paragraph 2b, above, it is found that by letter dated August 1, 2007, the respondent’s counsel informed the complainant that the school district did not maintain any “copies” of the write-in votes for Ms. Doninger or memos or e-mails regarding such write-in votes. 

 

15.   It is found that the school district maintains the original ballots on which votes for Ms. Doninger were written in, and that the respondent and/or her counsel interpreted the complainant’s request to be for a copy of a copy of the original ballots (which does not exist) rather than for a copy of the original. 

 

16.   It is found that the respondent’s original interpretation of the complainant’s request described in paragraph 2b, above, is not reasonable.  It is found, however, that the request was clarified and the complainant was provided with a copy of all of the ballots within a week of his request. 

 

17.   With respect to the timeliness of the respondent’s compliance with the complainant’s request described in paragraph 2b, above, it is found that, at the time of the complainant’s request, many of the school district’s buildings were under reconstruction and the respondent’s offices, as well as those of the school district’s high school, were moved to temporary sites with most of their records and files packed away in storage. 

 

18.   It is also found that the respondent does not directly maintain the requested records, but rather the principal of the high school does, who was on vacation at the time of the request.  It is found, however, that after some inquiry, a staff member of the high school located the box in which the ballots were stored.  

 

19.   It is found that the respondent provided the complainant with access to inspect the write-in votes submitted for Ms. Doninger on August 7, 2007 and provided him with a copy of all of the ballots on August 9, 2007, a total of six business days from the date of his request.

 

20.  It is concluded that under the circumstances described in paragraphs 17 and 18 above, the respondent complied “promptly” with the complainant’s records request within the meaning of §§1-210(a) and 1-212(a), G.S.

 

21.   It is concluded, therefore, that the respondent did not violate the disclosure provisions of §§1-210(a) or 1-212(a), G.S., with respect to the records described in paragraph 2b, above. 

 

22.   The Commission declines to consider the imposition of a civil penalty in this matter.   The complainant’s request for an order for the respondent to attend an FOI workshop is hereby denied.

 

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 11, 2008.

 

 

________________________________

S. Wilson

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:

 

Andy Thibault 

P.O. Box 1415

Litchfield, CT 06759

           

Paula Schwartz, Superintendent

of Schools, Regional School

District #10 

c/o Christine L. Chinni, Esq. and

Craig S. Meuser, Esq.

Chinni & Meuser LLC

30 Avon Meadow Lane

Avon, CT 06001

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-418FD/sw/6/13/2008