In the Matter of a Complaint by FINAL DECISION


David L. Pieterse,




against Docket #FIC 86-134


Transportation District Engineer of the State of Connecticut Department of Transportation,


Respondent August 13, 1986


The above-captioned matter was heard as a contested case on June 3, 1986, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.


After consideration of the entire record, the following facts are found:


1. The respondent is a public agency within the meaning of 1-18a(a), G.S.


2. At some time prior to June 18, 1985 the Ciocca Construction Corp. ("Ciocca") entered into an agreement with the State of Connecticut Department of Transportation ("DOT") for the installation of traffic signals in East Windsor and Enfield, CT, which project was designated No. 46-96. Pursuant to Ciocca's agreement with the DOT, liquidated damages of $1,000 were to be assessed against Ciocca for each day by which Ciocca exceeded its contract deadline of June 18, 1985.


3. By letter dated April 22, 1986 the complainant, Ciocca's claims administrator, made a request of the respondent for documentation of any efforts by the DOT to measure the actual damages it might expect in the event of a late completion of the project.


4. By letter of complaint dated May 9, 1986 and filed with the Commission on May 15, 1986 the complainant appealed the respondent's failure to respond to his request.


5. By letter dated May 7, 1986 the respondent informed the complainant that information regarding the establishment of damages on project No. 46-96 did not originate from the respondent's office and that the respondent had no copies of such


Docket #FIC 86-134 Page Two


information. The respondent also informed the complainant that "[b]y copy of this letter, we are requesting the office of design to furnish directly to you any information they may have relative to your request."


6. By letter dated May 13, 1986 the director of engineering of the DOT's Bureau of Highways informed the complainant that liquidated damages were specified by the DOT's Traffic Division and that the matter had been referred to Frank M. D'Addabbo, Manager of Traffic.


7. The complainant has been unsuccessful in his attempts to reach Mr. D'Addabbo.


8. The respondent claims that its files were made available to a representative of Ciocca prior to the complainant's request, that it does not have the records requested and that the complaint is harassing and frivolous.


9. It is found that a prior examination of its files by a representative of Ciocca did not relieve the respondent of its responsibility to respond to subsequent requests for specific records by Ciocca or its representatives. The raising of such prior examination as a defense to the complaint is, therefore, without merit.


10. It is found that an appeal to this Commission of the respondent's failure to respond to the complainant's April 22, 1986 request was neither harassing nor frivolous.


11. It is found that the requested records are prepared, owned, used, received or retained by a division of the DOT, but which division it is could not be determined by the complainant without a response from the respondent.


12. It is found that the respondent's failure to respond promptly to the complainant's inquiry violated 1-21i(a), G.S.


13. It is further found that the respondent's failure to respond promptly to the complainant's inquiry unnecessarily impeded the complainant's progress toward his goal of obtaining the requested records. The Commission notes that until Mr. D'Addabbo responds, the complainant still will not know whether he has located the repository of the requested documents.


Docket #FIC 86-134 Page Three


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


1. The respondent shall forthwith determine which division of the DOT maintains the records requested by the complainant, shall obtain such records and shall forthwith forward them to the complainant.


Approved by order of the Freedom of Information Commission at its regular meeting of August 13, 1986.


Karen J. Haggett

Clerk of the Commission