In the Matter of a Complaint by FINAL DECISION


Edwin H. Baumer,




against Docket #FIC 86-146


The Assessor of the Town of Newtown,


Respondent August 27, 1986


The above-captioned matter was heard as a contested case on June 16, 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. By letter dated March 31, 1986 the Newtown board of tax review informed the complainant that his appeal before the board had been dismissed.


3. On or about May 5, 1986 the complainant made a request of the respondent for information regarding the disposition of other taxpayers' appeals to the board of tax review. The complainant was directed by the respondent to make a written request for "a list of the taxpayers appealing their assessment to [the board of tax review] and the action taken."


4. By letter of complaint filed with the Commission on May 28, 1986 the complainant appealed the respondent's failure to provide him with the requested records.


5.     On June 9, 1986, following an appearance in the local paper of a story about the complainant's appeal to the Commission, the complainant was contacted by the respondent who told him that an envelope containing the requested information had been prepared and would be available to him upon payment of $29.95. The complainant, who had expected that the requested information would be provided to him, in the form requested, at no cost, refused the respondent's offer and made no inquiry into the nature of the records offered.


Docket #FIC 86-146 Page Two


6. The envelope referred to above contains copies of letters notifying persons of the dispositions of their appeals to the board of tax review. Such letters constitute the only record of the information sought by the complainant, there being no list such as was requested.


7. At hearing the complainant indicated that he intended to contact other appellants to determine the viability of a class action suit against the Town of Newtown and a revaluation firm. Because he had not yet obtained the list which would allow him to contact other appellants, the complainant requested that the Commission grant him a 60 day extension of the time limits imposed by 12-118, G.S.


8. The respondent, which does not dispute that the information in question is accessible to the public, claims that the delay in responding to the complainant's request was due to the lack of staffing for the board of tax review. The board of tax review indicated at hearing that the complainant would not have been denied access to inspect the records had such a request been made.


9. It is found that the lack of staffing does not relieve the board of tax review from all responsibilities under the Freedom of Information Act. The respondent offered no evidence that any attempt to respond to the complainant's request was made prior to the appearance of the June 6, 1986 newspaper article.


10. Nothing in the Freedom of Information Act requires an agency to create a record. The respondent, therefore, was not required to supply the complainant with a list such as was requested in the May 5, 1986 letter.


11. It is found, however, that the respondent failed to respond to the complainant's request for records in a timely manner, in violation of 1-21i(a), G.S.


12. A timely and meaningful response from the respondent and the board of tax review would have enabled the complainant to obtain the requested information by examining the files of the board of tax review. The lateness of the response unnecessarily impeded the complainant's progress toward the filing of a complaint in Superior Court, and such lateness was exacerbated by a regrettable lack of flexibility and communication among the parties.


13. This Commission, however, is without jurisdiction to extend the time limits contained in 12-118, G.S. as requested by the complainant.


Docket #FIC 86-146 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 provide the complainant with the records referred to at paragraph 6, above, at no cost to the complainant.


Approved by order of the Freedom of Information Commission at its regular meeting of August 27, 1986.


Karen J. Haggett

Clerk of the Commission