FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 20, 2008, and August 18, 2008, at which times the complainant and the respondent Department of Mental Health and Addiction Services (“DMHAS”) appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of the August 18, 2008 hearing, this matter was consolidated with Docket #FIC 2008-308, Patrick Dolan v. Chairman, Community Advisory Board, State of Connecticut, Department of Mental Health and Addiction Services, Southeastern Mental Health Authority; and State of Connecticut, Department of Mental Health and Addiction Services.  The respondent Community Advisory Board, having been added as a respondent to Docket #FIC 2008-146 following the June 20, 2008 hearing, failed to appear on August 18, 2008, when both Docket #FIC 2008-146 and Docket #FIC 2008-308 were heard. 

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.      It is found that on January 25, 2008, the complainant made a written request for minutes of the meetings of the respondent Community Advisory Board from January 2005 to January 2008, “inclusive.”     

 

3.      By letter dated February 27, 2008, and filed March 5, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide copies of the minutes he requested, described in paragraph 2, above.

 

4.      It is found that the FOI Officer for DMHAS responded to the complainant’s request for records, because DMHAS provides administrative support to the Community Advisory Board.  It is found that the Community Advisory Board operates under the auspices of the Southeastern Mental Health Authority, which the DMHAS website describes as “the clinical, administrative and fiscal ‘umbrella’ for all mental health services in Southeastern Connecticut funded by the State of Connecticut Department of Mental Health and Addiction Services.”

 

5.      It is found that on February 8, 2008, the respondent DMHAS, through its FOI Officer, informed the complainant in writing that it had assembled 69 pages of copies of records in response to his request and that it would provide the copies to him upon receipt of $17.25.

 

6.      It is found that the complainant consequently sent a check, dated February 10, 2008, payable to the order of DMHAS, for the full amount. 

 

7.      It is found that DMHAS subsequently sent copies of records responsive to the complainant’s request, as described in paragraph 2, above, except for the minutes of the meeting of January 23, 2008.

 

8.      It is found that DMHAS did not provide copies of the minutes of the meeting of January 23, 2008 because the Advisory Board had not yet approved the minutes.

 

9.      It is found that the Board approved the minutes at its February 27, 2008 meeting.  It is found that the complainant requested copies of the now-approved minutes at the February 27, 2008 meeting, but that the Keeper of the Minutes, who is the administrative assistant to the CEO of the Southeastern Mental Health Authority, refused to provide copies at that time.

 

10.   It is found that DMHAS finally provided copies of the minutes of the January 23, 2008 meeting by enclosing them with a letter it sent to the complainant on March 3, 2008.

 

11.   In a Motion to Dismiss, DMHAS claimed that the complainant filed his appeal with the FOI Commission more than 30 days after DMHAS denied his request for copies of the minutes of the January 23, 2008 meeting. 

 

12.  Section 1-206(b)(1), G.S., provides in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial.

 

13.   In its motion, DMHAS claims that it informed the complainant on January 30, 2008 that it would not provide copies of the minutes of the January 23, 2008 meeting until the Board approved the minutes.

 

14.   It is found, however, that the January 30, 2008 letter to the complainant mentioned nothing about the minutes of the January 23, 2008 meeting.*  It is further found that the complainant did not learn that the 69 pages of copies of records he requested and paid for did not include the minutes of the January 23, 2008 meeting until he received the copies from the respondent, at some date subsequent to February 10, 2008.

 

15.   It is found that the respondents denied the request for the January 23, 2008 minutes when they actually provided the package of minutes that did not include the January 23, 2008 minutes, sometime after February 10, 2008.

 

16.   It is found, therefore, that the complainant’s March 5, 2008 appeal to the FOI Commission was filed within 30 days of the date of the respondent’s denial of his request.

 

17.   It is concluded, therefore, that the complainant timely filed his appeal and that the FOI Commission has subject matter jurisdiction over the complainant’s appeal.

 

18.   Section 1-200(5), G.S., defines “public records or files” 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 … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

19. 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 receive a copy of such records in accordance with the provisions of section 1-212. 

 

            20.   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 . . . .”

 

21.   Section 1-225(a), G.S., provides, in relevant part: “…minutes shall be available for public inspection within seven days of the session to which they refer.”

 

22.   It is found that DMHAS maintained copies of at least the unapproved minutes of the January 23, 2008 Advisory Board meeting by the time it responded to the complainant’s request on January 30, 2008, described in paragraph 2, above.

 

23.   It is found that DMHAS failed to make the minutes of the January 23, 2008 meeting available for public inspection within seven days of the meeting.

 

24.   It is concluded that DMHAS violated §1-225(a), G.S., of the FOI Act by refusing to make the minutes of the January 23, 2008 meeting available for the complainant’s inspection within seven days of the meeting.  It is also concluded that the minutes’ status as unapproved did not relieve DMHAS of its duty to timely provide the minutes to the complainant.

 

25.   By letter dated February 28, 2008 and filed March 4, 2008, the complainant added an addendum to his initial appeal to the FOI Commission.  In his addendum, the complainant alleged that DMHAS failed to fully comply with a request for records he made on November 16, 2007.  It is found that DMHAS responded to that request on November 19, 2007.

 

26.   It is found that the complainant filed his appeal concerning his request for such records, described in paragraph 24, above, more than 30 days after DMHAS allegedly denied his request.  Consequently, it is concluded that the FOI Commission lacks subject matter jurisdiction over such alleged violation, pursuant to §1-206(b)(1), G.S.

 

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

 

1.      Henceforth, the respondents shall make minutes of meetings available for public inspection within seven days of the session to which they refer.

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 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:

 

Patrick Dolan

4 Philanne Drive

Norwich, CT 06360

 

Chairman, Community Advisory Board,

State of Connecticut, Department of

Mental Health and Addiction Services,

Southeastern Mental Health Authority

c/o Michael S. Bonnano, Esq.

Geraghty & Bonnano, LLC

21 Montauk Avenue, Suite 202

PO Box 231

New London, CT 06320

 

State of Connecticut, Department of

Mental Health and Addiction Services

c/o Jacqueline S. Hoell, Esq.

Assistant Attorney General

55 Elm Street

PO Box 120

Hartford, CT 06141-0120

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-146FD/paj/10/27/2008