FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on March 3, 2011, at which time the complainant and 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 June 8, 2010 (“June 8^th request”), the complainant made a request to the respondent for the following:

 

Any and all documents relating to the Public Bar from 11/1/09 to 6/7/10, including any written, recorded or graphic matter, however produced or reproduced, including, but not limited to, any correspondence, memoranda, notes or meetings, telegrams, faxes, reports, transcripts of telephone conversations, e-mails, or any other writings of documentary material of any nature whatsoever, together with any attachments thereto and enclosures therewith, and any computer-based, photographic, and retrievable matter (whether taped, electronically, electrostatically, electromagnetically or otherwise) in possession, custody or control of the party responding to this FOIA request.

This specifically includes any video tapes of any hearings regarding the Public.

 

3.      It is found that, by memorandum dated August 24, 2010, the respondent informed the complainant that several CDs and/or DVDs of certain meetings of the City of Middletown Planning & Zoning Commission (hereinafter “P&Z”) and the Zoning Board of Appeals (hereinafter “ZBA”) had been duplicated, which were responsive to her June 8^th request, including: a CD of the January 7, 2010 ZBA meeting; DVD of the February 24, 2010 P&Z meeting; DVD of the April 28, 2010 P&Z meeting; CD and DVD of the May 12, 2010 P&Z meeting; DVD of the September 27, 2006 P&Z meeting; and DVD of the October 11, 2006 P&Z meeting.  It is further found that the respondent informed the complainant that it was unable to locate the recordings of the January 27, 2010 P&Z meeting and the February 4, 2010 ZBA meeting.

 

4.      By letter dated and filed on August 30, 2010, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide her with copies of the recordings for the January 27^th P&Z meeting and February 4^th ZBA meeting, described in paragraph 3, above.  The complainant requested that the Commission refer this matter to the State’s Attorney to investigate whether the respondent violated §1-240, G.S., by willfully destroying a public record.  At the hearing, the complainant also requested the imposition of civil penalties against the respondent.        

 

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

 

7.      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.”

 

8.      It is found that the records requested by the complainant, 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.

 

9.      It is found that, by memorandum dated December 17, 2010, the respondent informed the complainant that after a more thorough search, the respondent located the DVD of the January 27^th P&Z meeting which had been inadvertently mislabeled.  It is also found that the respondent informed the complainant that a DVD copy of the January 27^th P&Z meeting was being prepared and would be provided upon prepayment of $10. 

 

10.  It is found that, by letter dated January 13, 2011, the complainant submitted payment to the respondent for a DVD copy of the January 27^th P&Z meeting.  It is found that, on or about February 12, 2011, the complainant viewed such DVD. 

 

11.  The complainant alleges that the respondent deliberately withheld both the P&Z meeting and ZBA meeting recordings at issue in this matter given the controversial nature of the proceedings and the outrageous conduct of certain public officials at such proceedings. 

 

12.  It is found that the City of Middletown’s P&Z meetings are on public access television, and, at the time of the January 27^th P&Z meeting, such meetings were recorded to digital video disks.  It is also found that the January 27^th P&Z meeting was recorded to a digital video disk.          

 

13.  It is found that there is no evidence in the record to show that the respondent deliberately mislabeled and withheld the recording of the January 27^th P&Z meeting. 

 

14.  It is found that the respondent’s provision of the January 27^th P&Z meeting recording six months after it was requested, was not prompt within the meaning of §§1-210(a) and 1-212(a), G.S.  It is concluded, therefore, that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to promptly provide to the complainant a copy of such recording.

 

15.  It is found that the City of Middletown’s ZBA proceedings are digitally recorded by a portable digital recorder.  It is found that, after a ZBA proceeding, the portable digital recorder is placed in a docking station and the recording automatically uploads directly into a computer file.  It is also found that the respondent does not have anyone on staff overseeing the uploading of the recording, and that no videotape or DVD is produced unless requested.   

 

16.  It is found that the February 4^th ZBA meeting was purportedly digitally recorded by a portable digital recorder.  It is further found that the respondent’s staff searched the computer file into which the recording should have automatically uploaded, but were unable to locate any recording.  At the hearing, the respondent submitted a copy of the minutes for the February 4^th ZBA meeting into evidence, a copy of which was provided to the complainant.   

 

17.  It is found that there is no evidence in the record to show that the respondent deliberately withheld the recording of the February 4^th ZBA meeting.

 

18.  It is found that a recording of the February 4^th ZBA meeting did not exist at the time of the request, described in paragraph 2, above.  Accordingly, it is found that the respondent did not maintain or keep on file copies of the requested recording.

 

19.  It is concluded, therefore, that the respondent did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., as alleged by the complainant, with respect to the request for the recording of the February 4^th ZBA meeting.

 

20.  It is further concluded that matters regarding the retention and destruction of public records are within the purview of the State’s Public Records Administrator pursuant to §11-8a, G.S., and criminal enforcement powers under §1-240, G.S., reside in the applicable States’ Attorney.

 

21.  Notwithstanding the conclusion in paragraph 14, above, and due to the facts and circumstances of this case, the Commission declines to consider the imposition of a civil penalty 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 respondents shall strictly comply with the promptness 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 June 8, 2011.

 

 

__________________________

Cynthia A. Cannata

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:

 

Sally Roberts

The Law Office of Peter Upton & Associates, LLC

One Liberty Square, Suite 208

New Britain, CT  06051

 

Planning and Zoning Commission, Department of Planning,

Conservation & Development, City of Middletown

c/o Timothy P. Lynch, Esq.

City Attorney’s Office

245 DeKoven Drive

P.O. Box 1300

Middletown, CT  06457

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-541/FD/cac/6/9/2011