FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on September 21, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter has been consolidated with Docket #FIC 2011-212, Frank J. Kolb, Jr., v. Mayor, Town of East Haven and Town of East Haven; and Docket #FIC 2011-343, Joseph Disilvestro v. Mayor, Town of East Haven and Town of East Haven. 

 

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 February 17, 2011, the complainant requested from the respondents a copy of: 

 

(a)  “all emails between Mayor April Capone Almon…and Sharon Bass, and any and all emails from Sharon Bass to Mayor April Capone Almon or any town employee.”

 

(b)  “the PERF[1] Report and a copy of the billing for the PERF Report.”

 

3.  It is found that, by letter dated March 2, 2011, the complainant, having received no response to the request described in paragraph 2, above, renewed his request.

 

4.  It is found that, by letter dated March 4, 2011, the respondents provided all records responsive to the request described in paragraph 2(a), above, and further provided copies of the requested billing records, described in paragraph 2(b), above.  However, it is also found that the respondents informed the complainant, in their March 4 letter, that the PERF Report, described in paragraph 2(b), above, did not exist.

 

5.  It is found that, by letter dated March 11, 2011, the complainant challenged the respondents’ assertion that the PERF Report did not exist, stating that he had reviewed the billing records, dated January 31, 2011, which indicated “delivery of final group of draft policy recommendations” to the respondents. 

 

6.  It is found that, by letter dated March 15, 2011, the respondents provided the complainant with the PERF Report, responsive to the request described in paragraph 2(b), above.  It is also found that the complainant was charged $60.00 in copying fees for such report and that, later that week, the respondents provided copies of the report to the public, free of charge, at a press conference.

 

7.  By letter of complaint, dated and filed March 24, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to provide him with a copy of the PERF Report, described in paragraph 2(b), above, on February 17, 2011. 

 

8.  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.

 

9.  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.

 

            10.   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.”

 

11.    It is found that the respondents maintain the record described in paragraph 2(b), above, and that such record is a public record within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S. 

 

12.  At the hearing in this matter, the complainant testified that he believed the respondents maintained the PERF Report at the time of his February 17 request, described in paragraph 2(b), above, and deliberately withheld it from him.  As evidence of this, the complainant points to the January 31 billing record indicating that “draft policy recommendations” were delivered to the respondents.  It is found that the complainant understood the “draft policy recommendations” to be the same thing as the PERF Report.

 

13.  However, the respondents testified, and it is found, that the “draft policy recommendations” are different from the PERF Report.  It is found that the PERF Report was not received by the respondents until the week of March 14, 2011.  Thus, it is found that the respondents did not maintain the PERF report at the time of the February 17 request.  It is further found that, immediately upon receipt of such report by the respondents, a copy was provided to the complainant.

 

14.  Accordingly, it is concluded that the respondents 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.

 

            2.  At the hearing in this matter, the respondents offered to reimburse the complainant $60.00 for copying fees.  The Commission commends the respondents for this gesture.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 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:

 

Frank J. Kolb, Jr.

c/o Joseph A. Disilvestro, Esq.

Kolb & Associates, P.C.

49 High Street

East Haven, CT  06512

 

Mayor, Town of East Haven; and

Town of East Haven

c/o Michael A. Albis, Esq.

Hilcoff & Albis, LLC

58 Edward Street

East Haven, CT  06512

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-161/FD/cac/12/16/2011