FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was consolidated for hearing with Docket #FIC 2011-185; Bradshaw Smith v. Chief, Police Department, Town of Windsor; and Police Department, Town of Windsor. It was heard as a contested case on June 6 and July 21, 2011, at which times the complainant and the respondents appeared 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that, by letter dated October 19, 2010, the complainant requested a copy of the “leash law”, citing the Connecticut General Statutes, which required the complainant to put his dog on a leash (the “requested record”).  The complainant added that he “look[ed] forward to hearing from you by the end of this business day.” The complainant’s letter did not include any return address or other contact information.

 

3.  It is found that on October 19, 2010 Captain Kelvan Kearse of the respondent Department responded to the complainant’s letter with a telephone call and message on the voicemail of the complainant. The respondent Police Chief asked Captain Kearse to call the complainant. Captain Kearse testified that he responded by telephone because the request asked for a response by the end of the day. Captain Kearse’s voicemail message asked the complainant to verify that the letter was his letter; stated that Captain Kearse understood that the complainant had a question concerning dogs, which had to be under control; and asked that the complainant call back to either the cell or work telephone numbers provided. The complainant did not respond to this phone message.   

4.  By letter dated November 2, 2010 and filed with the Freedom of Information Commission (the “Commission”) on November 3, 2010, the complainant appealed to the Commission, alleging that the respondents failed to provide access to public records in violation of the Freedom of Information Act (“FOIA”). In addition to other relief, the complainant requested the assessment of civil penalties against the respondent Police Chief and two other members of the respondent Department.

 

5.  At the June 6, 2011 hearing, the respondents filed a motion seeking a civil penalty against the complainant for taking both appeals (this case and Docket #FIC 2011-185) without reasonable grounds and solely for the purpose of harassing the respondents. The respondents stated that the complainant knew there is no “leash law” in the Connecticut General Statutes.

 

6.  With respect to both requests for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.  If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars. (emphasis added)

 

7.  Section 1-210(a), G.S., states 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 (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. 

 

8.  It is concluded that the requested record described in paragraph 2, above, is, if such record exists, a “public record[… ]” within the meaning of §1-210(a), G.S.

 

9.  It is found that there is no “leash law” in the Connecticut General Statutes. Section 22-364, G.S., prohibits allowing dogs “to roam at large upon the land of another and not under the control of the owner…”, but does not in any respect address leashes.

 

10.  It is found that the respondents do not maintain or keep on file any record that is within the scope of the request set forth in paragraph 2, above. Moreover, there is no FOIA requirement to notify a requester when a public agency does not maintain any record within the scope of a request. See Docket # FIC 2008-776; Bradshaw Smith v. Donald S. Trinks, Mayor, Town of Windsor.

   

11.  It is concluded that the respondents did not violate §1-210(a), G.S. Given this conclusion, there is no need to address the issue of imposing civil penalties on the respondent Police Chief and two other members of the respondent Department.

 

12.  The complainant testified that at the time he filed his complaint in this matter, to the best of his knowledge, there was no “leash law” in the Connecticut General Statutes. Indeed, it can be logically inferred that the complainant was displeased with his interaction with a member of the respondent Police Department on October 19, 2010, as discussed in his request letter of the same date. It also appears that he was taking issue with the police officer who allegedly told the complainant that “you need to put your dog on a leash… because that is the law in Connecticut.” Therefore, the complainant may have had the objective of wishing to demonstrate that the police officer’s request to leash the complainant’s dog was without legal authority.

 

            13.  Nonetheless, in this matter, it cannot be concluded that the complainant was acting frivolously, without reasonable grounds, and solely for the purpose of harassing the respondents. At the time he filed his complaint, the complainant did not believe there was a “leash law” in the Connecticut General Statutes, but he could be seen as acting in good faith with reference to the possibility that there was a “leash law” concerning which he was not aware.

 

            14.  It is therefore concluded that in this matter there is no legal basis for imposing a civil penalty against the complainant.

 

             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 September 14, 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:

 

Bradshaw Smith

23 Ludlow Road

Windsor, CT  06095

 

Kevin Searles, Chief, Police Department, Town of Windsor; and

Police Department, Town of Windsor

c/o Vincent W. Oswecki, Jr., Esq.

O’Malley, Deneen, Leary, Messina & Oswecki

20 Maple Avenue

P.O. Box 504

Windsor, CT  06095

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-695/FD/cac/9/14/2011