FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on March 14, 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 September 8, 2010, the complainant made a request to the respondent for “an electronic copy of all of your emails from all of your email accounts from 01/01/2010 to present.”  It is also found that the request was mailed to the complainant personally at her home address.

 

3.      It is found that, by letter dated September 13, 2010, the respondent acknowledged the receipt of the complainant’s September 8^th request, but informed him that his request needed to be submitted formally under Freedom of Information, and sent to the Town of East Hampton Town Hall, and addressed to her as a member of the Town Council. 

 

4.      It is found that, by letter dated September 15, 2010, the complainant informed the respondent that his September 8^th request was a formal request and that there was no need for him to send the request to Town Hall.  It is also found that the complainant clarified that his request was only for “town related” emails from all of the respondent’s email accounts.

 

5.      It is found that, by email dated September 19, 2010, the respondent acknowledged the complainant’s September 15^th request, and informed the complainant that his revised request would be reviewed by the respondent’s town attorney and, upon receipt of the town attorney’s opinion, the respondent would begin the process of reviewing and formatting the emails.  It is also found that the respondent informed the complainant that this was a busy time of year for her at work and that she would complete the request in a reasonable amount of time.

 

6.      By facsimile dated and filed on October 4, 2010, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the requested records, described in paragraphs 2 and 4, above. 

 

7.      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.

 

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

 

9.      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.”

 

10.  It is found that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

11.  It is found that, on or about October 23, 2010, the respondent began a search of her email accounts for any records responsive to the complainant’s requests.  It is found that, between October 23, 2010 and November 8, 2010, the respondent searched two separate email accounts, one of which the complainant testified she could retrieve only from a personal computer located in her home in Vermont.  It is further found that the respondent reviewed approximately 1300 emails, spending between 30 to 60 minutes a day between October 23, 2010 and November 8, 2010, reviewing such emails.

     

12.  It is found that, by letter dated November 8, 2010, the respondent provided the complainant with certain records responsive to his records requests described in paragraphs 2 and 4, above.  It is further found that, prior to the filing of the complaint in this matter, the complainant never acknowledged receipt of such records nor expressed to the respondent any problem regarding the records that were provided or allegedly missing. 

 

13.  The complainant acknowledges that he received some records responsive to his September 8^th and September 15^th requests, but believes that some records are being withheld, including attachments to certain emails provided to the complainant in response to such requests and additional correspondence between the complainant and the respondent.  The complainant also alleges that the respondent did not respond to his September 8^th and September 15^th requests in a prompt manner.  At the hearing, the respondent offered to provide the complainant with any attachments that may have been unintentionally omitted from the set of records provided to the complainant.

 

14.  With respect to the complainant’s claim that the records, described in paragraph 12, above, were not provided to her “promptly,” the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. 

 

15.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

16.  The respondent contends that her response to the complainant’s records requests was reasonable and timely once the complainant clarified that his records request was for town-related emails, and not her personal emails, and given that, at the time of such requests, the respondent was particularly busy with town-related matters as well as with her own business. 

 

17.  It is found that, in her official capacity as a Town Council member, the respondent was involved in efforts to overturn a recent ordinance decision by the East Hampton Town Council eliminating the position of police chief.  It is found that such efforts included the review of town emails covering a two-year period, handling constituency calls, and holding press conferences.  The respondent was also involved in the review of the former Town Manager’s employment contract, including a severance package.  It is further found that the respondent was responsible for touring properties in town to find a suitable location to relocate the probate court and the parks and recreation department; for preparing for a November 2, 2010 referendum regarding the ordinance decision eliminating the police chief position as well as certain Town Charter reform; and was involved in discussions pertaining to an ongoing noise ordinance issue, school bus safety issues, and the Town budget.  The Town of East Hampton was also involved in multiple lawsuits brought against the Town and other pending litigation requiring special meetings.

 

18.  It is found that the respondent also operates her own business, and at the time of the requests, she was working on her company website and the filing of business quarterly reports as well as working on different clients’ websites, letterheads and brochures. 

 

19.    It is found that the complainant’s requests required the respondent to search voluminous emails.  It is further found that the respondent diligently attempted to provide a complete and prompt response to the complainant.  It is found that there was no undue delay in obtaining the records.

 

20.  It is found that, under the facts and circumstances of this case, the respondent’s provision of the requested records, described in paragraph 12, above, ­­­­was prompt within the meaning of §1-210(a), G.S.

 

21.  It is concluded, therefore, that the respondent did not violate the FOI Act as alleged in the complaint.

 

 

            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 July 27,  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:

 

Theodore W. Hintz, Jr.

P.O. Box 200

Middle Haddam, CT  06456

 

Sue Weintraub, Member, Town Council,

Town of East Hampton

c/o Jean M. D’Aqulia, Esq.

D’Aquila Law Offices, LLC

100 Riverview Center

Suite 205

Middletown, CT  06457

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-617/FD/cac/7/29/2011