FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Wil Sormrude,

 

Complainant

 

against Docket #FIC 88-215

 

Town of Ledyard Zoning Board of Appeals,

 

Respondent October 26, 1988

 

The above-captioned matter was heard as a contested case on July 28, 1988, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.

 

2. On or about March 12, 1987 the State of Connecticut Department of Environmental Protection ("DEP") issued the Town of Ledyard an administrative order, HM-406, concerning the former Ledyard town garage. The DEP's order required the town to dispose of certain toxic and hazardous wastes and contained a schedule for the performance of the project, the stages of which were identified by the letters A through G.

 

3. On April 20, 1988 the respondent held a public hearing on a petition by the complainant for a variance concerning property adjacent to the site of the former Ledyard town garage. At a May 18, 1988 meeting the respondent voted to deny the complainant's petition.

 

4. The respondent notified the complainant of its denial by letter dated May 21, 1988 and, on May 26, 1988, published a notice of such denial in the local newspaper.

 

5. By letter dated May 25, 1988 the complainant made a request of the respondent for certain records relating to his petition and the denial thereof, including all correspondence to and from the DEP regarding pollution at the former town garage site.

 

Docket #FIC 88-215 Page Two

 

6. On June 7, 1988 the complainant telephoned the respondent's secretary, Margaret Tipple, to check on the progress of his request. Ms. Tipple stated that she had not yet read his letter of request and would call him back the next day to discuss it, but did not do so.

 

7. By letter of complaint filed with the Commission on June 10, 1988 the complainant appealed the respondent's failure to provide the requested records. The complainant stated in his letter his fear that his inability to obtain the records would affect his ability to appeal the respondent's denial of his petition.

 

8. The complainant received most of the requested records on June 10, 1988, including records relating to part A of the schedule established in the DEP's March 12, 1987 order.

 

9. In a supplemental letter filed with the Commission on July 20, 1988 the complainant asked that the respondent's May 18, 1988 action be declared null and void, that the respondent be ordered to produce records relating to items B through G of the DEP's order, that a civil penalty be imposed against the respondent and that the respondent and its secretary be required to attend a Freedom of Information Act workshop.

 

10. The complainant claims that pursuant to 8-6, G.S. he had only 15 days from the publication of notice of the denial in which to appeal the respondent's action, that due to the delay in releasing the requested records he was unable to file a timely appeal, and that an order declaring the respondent's action null and void is therefore appropriate.

 

11. It is found that the respondent has provided the complainant with all records in its files relating to the DEP's order and to the complainant's variance petition and the denial thereof.

 

12. The respondent claims that the delay in responding to the complainant's request for records was caused by Ms. Tipple's absence while on vacation. Ms. Tipple left the office on May 25, 1988 and returned on June 6, 1988.

 

13. The respondent further claims that because the complainant could have filed an appeal of the respondent's decision without the requested records and because he never notified the respondent of the urgency of his request, an order declaring its decision null and void is inappropriate.

 

14. It is found that Ms. Tipple's inability to respond to the complainant's request due to her absence did not excuse the respondent from its responsibilities under the Freedom of Information Act.

 

Docket #FIC 88-215 Page Three

 

15. It is further found that the respondent's failure to provide the complainant with the requested records until June 10, 1988 denied the complainant prompt access to such records, in violation of 1-15 and 1-19(a), G.S.

 

16. It is found, however, that the respondent's failure to provide the requested records in a timely manner did not preclude the complainant from preserving his rights to appeal the respondent's decision. The Commission, therefore, declines to declare null and void the respondent's May 18, 1988 decision, as requested by the complainant.

 

17. The Commission also declines to impose a civil penalty or require the attendance of the respondent or its secretary at a Freedom of Information Act workshop.

 

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

 

1. The respondent henceforth shall act in strict compliance with 1-15 and 1-19(a), G.S. regarding prompt access to public records.

 

2. The respondent forthwith shall designate one of its members, or some other employee of the Town of Ledyard, to be responsible for reviewing and responding to requests for public records during its secretary's absences.

 

Approved by order of the Freedom of Information Commission at its special meeting of October 26, 1988.

 

Catherine H. Lynch

Acting Clerk of the Commission