In the Matter of a Complaint by FINAL DECISION


Dwayne Braithwaite,




against Docket #FIC 88‑212


Mayor William W. Dickinson, Jr., and Town of Wallingford,


Respondents December 20, 1988


The above‑captioned matter was heard as a contested case on September 2, 1988, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.


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 May 9, 1988, the complainant requested the respondent mayor provide him with:


a. all the bills, paid or unpaid, from the attorneys who worked on the case of Planning and Zoning Commission vs. Zoning Board of Appeals, including all such bills from Attorneys Thomas O. Terrace and Anthony J. Elia, Jr., and


b. all documents in the case of Masonic Charity Foundation v. Town of Wallingford, also known as the Ashlar Village case.


3. By letter dated May 11, 1988, the respondent mayor informed the complainant that the town attorney would contact him to advise him as to when the records would be available.


4. By letter dated June 6, 1988, and filed with the Commission on June 8, 1988, the complainant appealed to the Commission, alleging the denial of his request and requesting a civil penalty be imposed against the respondents.


5. The respondents claim that the matter was referred to the town attorney since the records were in the town attorney's


Docket #FIC 88‑212 Page Two


office, but that that office had no secretary, and only three part‑time lawyers, for several months. The respondents also claim that the town attorney tried to schedule an appointment for the complainant to review the requested records at a mutually convenient time.


6. It is found that the complainant addressed his request for records to the respondent mayor because he believed that the documents might be voluminous and located in several town offices.


7. Indeed, it is found that at the time of the request some of the requested records were available only in the town comptroller's office.


8. It is further found that the respondents failed to prove that all the records described in paragraph 2b, above, were in legal files in the town attorney's office and that no other documents, such as correspondence to the respondent mayor, exist.


9. It is found that on May 17, 1988, the complainant was called to schedule an appointment to review the requested records, requiring that the review take place in the respondent mayor's office.


10. It is found that the complainant agreed to review the records at 9 a.m. on May 20, 1988, provided that all the records would be in the respondent mayor's office at that time.


11. It is found that when the complainant arrived at the respondent mayor's office at the appointed time, the records were not there.


12. It is found that the complainant then asked to see the respondent mayor and the respondent mayor's assistant told him that he was in a meeting.


13. It is found that next the town attorney, via the telephone, offered to schedule another appointment for the complainant to review the records at a time when the town attorney could be present. The complainant declined the offer.


14. It is found that also on May 20, 1988, the town attorney sent the complainant a letter explaining the conditions under which the complainant could review the requested records.


15. It is found that all the requested records are public records within the meaning of 1‑18a(d) and 1‑19(a), G.S.


Docket #FIC 88‑212 Page Three


16. It is found that the respondents make no claim that any of the requested records are exempt from disclosure.


17. It is found that the lack of a secretary in the respondent town's legal office does not excuse the respondents from their responsibilities under the Freedom of Information Act.


18. It is concluded that the respondents' requirement of a scheduled appointment and the presence of one particular town officer impeded the complainant's "right to inspect such records promptly during regular office or business hours," in violation of 1‑19(a), G.S.


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


1. The respondents henceforth shall act in strict compliance with 1‑19(a), G.S., providing all persons access to public records promptly during regular business hours.


2. The respondents shall, at the complainant's earliest convenience, provide him access to all the records described in paragraph 2, above, both those located in the town attorney's office and those located in other town offices.


3. The Commission declines to impose a civil penalty upon the respondents.


Approved by order of the Freedom of Information Commission at its special meeting of December 20, 1988.



Catherine H. Lynch

Acting Clerk of the Commission