FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 3, 2009 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 November 6, 2008, the complainant made a request for the following records:

 

a.       a copy of the Inland Wetlands Commission’s and the Planning and Zoning Commission’s approval letters “that guide the current work on” the cluster housing development that is part of the Ogden Brook Estates project;

 

b.      a copy of the Design Review Committee’s public hearing minutes and the Planning and Zoning Commission’s public hearing minutes for the meetings at which the design of a certain ‘versa block’ retaining wall is specified on one of the plans for the east side of the right of way was discussed and approved; and

 

c.       a copy of the mylar plans the approval was based upon, the name of the engineer, and the date he or she approved the plans and the sewer connection.

 

3.      By e-mail dated and filed on November 17, 2008, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his November 6, 2008 records request.

 

4.      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 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

6.      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.”

 

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

 

8.      It is found that by letter dated February 3, 2009, the respondent provided the complainant with records that were responsive to his request.

 

9.       At the hearing on this matter, the complainant contended that the respondent’s February 3, 2009 response did not include all the records he requested and he further noted that the response was provided almost three months after his request was made.

 

10.   With respect to the records described in paragraph 2a, above, it is found that there was some legitimate confusion on the part of the respondent regarding the term “cluster housing.”  It is found that given the time frame of the complainant’s request, the respondent believed that he was requesting records regarding a subdivision of age-restricted condominiums, and provided responsive records accordingly. 

 

11.   At the hearing on this matter, the complainant explained that he was requesting the letters of approval with respect to “cluster housing” as defined in section 7 of the town of Vernon’s zoning regulations.

 

12.   At the hearing on this matter, the respondent agreed to provide the complainant with a copy of the letters of approval with respect to “cluster housing” as defined in section 7 of the town of Vernon’s zoning regulations.

 

13.   With respect to complainant’s request described in paragraph 2b, above, it is found that the meeting minutes of the two agencies were searched during the relevant time periods and those minutes do not include any reference to the “versa block” retaining wall the complainant describes or any other such wall.

 

14.   It is found that the respondent does not maintain any records responsive to the complainant’s request described in paragraph 2b, above. 

 

15.   With respect to the complainant’s request described in paragraph 2c, above, it is found that the mylar plans that the complainant requested are plans regarding two catch basins that were installed and connected to the town’s storm drainage system.  It is found that the two catch basins were suggested as a field modification during the construction of an entry way from a road.  It is found that while a plan for the two catch basins was drafted and approved, there is no mylar of that plan because it was a field modification that apparently did not require a mylar plan. 

 

16.   It is found, therefore, that the respondent does not maintain any record responsive to the complainant’s request described in paragraph 2c, above.

 

17.   With respect to the timeliness of the respondent’s response, it is found that the respondent received two pieces of correspondence from the complainant on the same date, one of which was a thick packet of material and the other was his November 6, 2008 records request.  It is found that the town administrator opened and dealt with the thicker correspondence and inadvertently co-mingled the November 6, 2008 correspondence with the thicker packet of material.  It is found that the town administrator remembered that he had received the November 6, 2008 records request only after he received notice from the Commission of the complaint in this matter and located the November 6, 2008 correspondence after conducting a lengthy search for it.

 

18.   It is found that the respondent’s delay in responding to the complainant’s November 6, 2008 request was inadvertent and every effort was made to comply with it as quickly as possible after receiving notice of the complaint in this matter.

 

19.   Toward the conclusion of the hearing in this matter, the parties entered into a stipulated agreement that the complainant would withdraw his complaint on the condition that he was provided with the records responsive to his request described in paragraph 2a, above, as clarified in paragraph 11, above.

 

20.   The hearing officer, thereafter, verbally ordered the respondent to provide the complainant with the records responsive to his request described in paragraph 2a, above, as clarified in paragraph 11, above, by April 17, 2009 and to notify this Commission when he had done so.

 

21.   It is found that by letter dated April 9, 2009, the respondent provided the complainant with the two approval letters that are responsive to his request described in paragraph 2a, above, as clarified in paragraph 11, above.

 

22.   It is found, however, that after receiving the records, the complainant failed to submit a letter of withdrawal contending in his brief that there is some contradiction between the respondent’s testimony and certain records that were provided to him by the respondents.  The complainant contended, in his brief, that a record captioned “Plan and Profile Carolyn Drive, Sheet 1 of 1, revised through 7/18/08” addresses his ‘versa block’ question but that the versa block retaining wall that was part of the cluster housing development project is not listed in the application plan documents for that project even though the respondent testified at the hearing in this matter that the versa block retaining wall was part of that plan.  The complainant then asked, in his brief, whether “a Connecticut licensed professional engineer approved (certify and seal) the versa block wall plan document” and requested that he be provided with that document.  The complainant concluded his brief by reiterating his request described in paragraphs 2b and 2c, above.

 

23.   It is found that the complainant has raised a new issue and made a new request for records in his brief which are both outside of the scope of the hearing in this matter and the parties stipulated agreement described in paragraph 19, above.

 

24.   It is concluded, therefore, that based on the findings is paragraph 14, 16, and 21, above, the respondent did not violate the disclosure provisions of §§1-210(a) or 1-212(a), G.S.   

 

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.      Notwithstanding the order in paragraph 1, above, the complainant is not precluded from making a new request to the respondent for the record described in paragraph 22 of the findings, above, or for any other public record.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 2009.

 

____________________________

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:

 

Fred Goff

130 Tracy Drive  

Vernon, CT 06066

 

Mayor, Town of Vernon

C/o Martin B. Burke, Esq.

130 Union Street

P.O. Box 388

Rockville, CT 06066

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-727FD/sw/9/15/2009