FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 5, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2010-754; Joan Lorraine Zygmunt v. Gail Kelly, Assistant Town Attorney, Town of Westport; and Town of Westport.  The case caption has been changed to reflect the correct office of Michael Rea.

 

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), G.S.

 

2.      It is found that on November 29, 2010, the complainant made the following requests for copies of records from the respondents:

 

a.       Billing records to support the payment of a $10,000 deductible on an insurance policy for legal representation in federal litigation against the town in 2005; and

 

b.      Itemized billings for legal services of Howd & Ludorf in the federal litigation that were addressed to Webster Insurance Company and/or USI.

 

3.      It is found that the respondents forwarded the complainant’s e-mail request to their town attorney, who responded to the complainant on December 6, 2010.

 

4.      It is found that the attorney informed the complainant that the respondents (the Board of Finance and two of its members) were not custodians of records such as those she requested.  It is found that the respondents also informed the complainant that “beyond the billing statements and invoices that have been provided to you, the Town of Westport does not have any additional billing statements supporting the deductible payments or additional statements for legal services provided by Howd & Ludorf, LLC.”

 

5.      By letter filed on December 28, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide access to copies of the records she requested, described in paragraph 2, above.

 

6.      Section 1-200(5), G.S., in relevant part, defines “public records” as follows:

 

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…whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.  (Emphasis added.)

 

7.      Section 1-210(a), G.S., provides, in relevant part:

 

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 the provisions of section 1-212.

 

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

 

9.      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.

 

10.  With respect to the billing records requested in paragraph 2.a, above, it is found that the respondents are not the custodians of such records and, therefore, do not maintain them.

 

11.  With respect to the complainant’s request, described in paragraph 2.b, above, for billing records by Howd & Ludorf to Webster Insurance, it is found that Howd & Ludorf is a private law firm that represented the town pursuant to a retainer agreement with Westport’s private insurer. 

 

12.   It is found that the town of Westport was responsible for paying the deductible on the insurance policy, and maintained records relating to the payment of such deductible.  It is found that the town attorney provided copies of such records to the complainant on previous occasions.

 

13.   It is found that, except for the deductible, the town’s insurer paid Howd & Ludorf and that, except for the deductible, no town funds were used to pay for the firm’s legal services.

 

14.   It is found that the records requested by the complainant, described in paragraph 2.b, above, to the extent that they exist, are maintained by the town’s insurer or by Howd & Ludorf.

 

15.   It is also found that neither the town’s insurer, nor Howd & Ludorf, is a public agency; therefore, neither entity is subject to the disclosure provisions of the FOI Act.  Andy Thibault, v. Paula Schwartz, Superintendent of Schools, Regional School District #10; Docket #FIC 2007-458 (June 11, 2008) (neither town insurer nor private law firm retained by insurer to handle federal litigation were public agencies.)

 

16.   It is further found that the records requested by the complainant, including billing records and correspondence between the insurer and Howd & Ludorf, are not records of the respondents and therefore, are not public records within the meaning of §1-210(a), G.S.  Consequently, the town has no legal obligation to obtain the records and provide them to the complainant.

 

17.   It is concluded, therefore, that the respondent did not violate §§1-210(a) or 1-212(a), G.S., by failing to provide the complainant with the records described in paragraph 2, above.

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

1.       The complaint is 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:

 

Joan Lorraine Zygmunt

20 Hendrie Court

Stamford, CT  06902

 

Michael Rea, Chairman, Finance Committee, Representative

Town Meeting of the Town of Westport; Avi Kaner, Member,

Board of Finance, Town of Westport; and Board of Finance,

Town of Westport

c/o Gail Kelly, Esq. and Bryan L. LeClerc, Esq.

Berchem, Moses & Devlin, P.C.

27 Imperial Avenue

Westport, CT  06880

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-801/FD/cac/8/1/2011