FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Diane Reed Sanford Anjone,

 

Complainant

 

against Docket #FIC 88‑77

 

State of Connecticut Department of Transportation and Assistant Attorney General Paige Everin,

 

Respondents December 14, 1988

 

The above‑captioned matter was scheduled but not heard as a contested case on April 19, 1988. It was continued several times to June 14, 1988, to July 12, 1988, to August 30, 1988, and then to October 16, 1988. At that time the parties appeared and presented evidence and argument on the complaint. The case was consolidated with #FIC 88‑78, Joseph E. Varisco v. State of Connecticut Department of Transportation and Assistant Attorney General Paige Everin, because the two cases concerned the same subject matter.

 

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

 

1. The respondents are public agencies within the meaning of 1‑18a(a), G.S.

 

2. By letter dated January 25, 1988, but not delivered to the respondents until February 23, 1988, the complainant requested through her attorney, Nancy Burton, access to inspect (a) the complete files of the New Milford District Office of the respondent department pertaining to 96 Redding Road, Redding, Connecticut; and (b) the complete files of the New Milford District Office pertaining to the Perkin‑Elmer Corporation property located at 100 Redding Road, Redding, Connecticut.

 

3. On February 23, 1988, the complainant's attorney was denied access to all of the files by the custodian of the records after consultation with other officials; and the complainant's attorney was again denied access on February 26, 1988, by the respondent Everin.

 

4. On March 7, 1988, the complainant filed her appeal.

 

5. At hearing the complainant stated that she did not seek a civil penalty against the respondents.

 

Docket #FIC 88‑77 page two

 

6. It is found that the respondents made all the records requested available to the complainant and her attorney approximately two weeks after the request was made.

 

7. The complainant alleges that the records were not provided within four days following the request, and that in any event the records were not provided promptly as required by 1‑15 and 1‑19(a), G.S.

 

8. It is found that the requested records and files contained hundreds of pages and that they included construction files, drainage information, correspondence, photographs, maps, applications, submissions, and an encroachment permit.

 

9. The respondent department claimed that, because the complainant had filed a lawsuit seeking injunctive relief against it, some of the records might have been exempt from disclosure under 1‑19b(b), G.S.

 

10. It is found since the complainant filed no discovery request in her lawsuit that the records in question are not exempt under 1‑19b(b), G.S.

 

11. The respondents claimed further that some of the requested records might have been exempt under 1‑19(b)(4) and 1‑19(b)(7), G.S.

 

12. It is found that the respondent Everin could have instructed the custodian of the records to make the bulk of the records available while retaining any possibly exempt files or records for his review.

 

13. It is found that 1‑21i(a), G.S., does not require the respondents to make the records available within four business days; but under that section, failure of the respondents to communicate when the records may be made available, constitutes a denial of access.

 

14. It is found that the respondents failed to notify the complainant within four business days when the records would be available.

 

15. It is concluded that the respondents denied the complainant access to the requested records and failed to provide the requested records promptly as required by 1‑15 and 1‑19(a), G.S.

 

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

 

Docket #FIC 88‑77 page three

 

1. The respondents shall henceforth provide access to records and files promptly as required by 1‑15 and 1‑19(a), G.S.

 

Approved by order of the Freedom of Information Commission at its special meeting of December 14, 1988.

 

Catherine H. Lynch

Acting Clerk of the Commission