FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Stuart Groten and Stuart Lane Company,
against Docket #FIC 92-235
Respondent March 10, 1993
The above-captioned matter was heard as a contested case on January 21, 1993, at which time the complainants 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 and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed July 20, 1992, the complainants appealed to the Commission, alleging that they were denied the opportunity to see property field cards when they visited the respondent's office on July 16, 1992.
3. It is found that the complainants visited the respondent's office on Thursday, July 16, 1992 to gather information to complete field work for an appraisal.
4. It is found that the complainants believed that the respondent's office would be open to the public, since the Goshen town hall is open five days a week.
5. It is found, however, that the respondent works only two full days a week for the town of Goshen, and that it is her policy to be available to the public for information requests on Wednesdays only.
6. It is found that the respondent was working in the Goshen town hall on the day the complainants visited it, but remained in her office behind a closed door and did not make herself available for document requests or other public queries.
7. It is found that the complainants, after being informed of the respondent's policy by the Goshen town clerk, asked whether it would be possible to obtain information from certain property field cards that day, since they had traveled to Goshen from Rocky Hill for that purpose.
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8. It is found that the town clerk asked the respondent to make an exception to her policy, and arranged for a copy of the field card for the property which the complainants were appraising to be made promptly.
9. It is found that the complainants then asked the town clerk if they could inspect four additional field cards of comparable properties.
10. It is found that the town clerk told the complainants that the respondent's policy was to put such requests in writing, together with a fee for copying, and that the respondent would later provide copies.
11. It is found that it is the respondent's policy that requests to inspect field cards on days other than Wednesdays must be submitted in writing together with a copying fee of $0.50 per page, and that copies of field cards are either picked up from her office on Wednesdays or mailed to the requesters.
12. It is found that the complainants sought only to inspect the field cards of the comparable properties, not to obtain copies of them, but submitted a written request and the fee for copies to get the information as quickly as possible.
13. It is found that the complainants then saw the respondent at the copying machine, and asked that the copies be made that day, since they had a job to complete and had traveled some distance to do it.
14. It is found that the respondent replied that she would not make the copies immediately, but that the complainants could return after lunch for them.
15. It is found that the complainants returned at 1:00 p.m., and found that the respondent had left a note indicating that she would be at lunch from 1:00 to 2:00 p.m.
16. It is found that the complainants returned again at 2:00 p.m., before the respondent.
17. It is found that the first selectman's secretary called a selectman on behalf of the complainants, and that the selectman authorized her to copy the field cards.
18. It is found that the first selectman's secretary attempted to retrieve the requested field cards, but could not do so because they were in a locked file to which the respondent had the only available keys.
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19. It is found that the respondent returned to her office at 2:50 p.m., at which time she remained behind her closed office door and denied the complainants' request to make the cards available that day or any day other than a Wednesday.
20. It is found that the complainants left their written request with the First Selectman's secretary and asked that the copies be mailed or faxed to them.
21. It is found that the complainants telephoned the first selectman's secretary the next morning to verify if the copies were sent, and were advised that they would have to return the next Wednesday for copies.
22. It is found that the complainants returned on Wednesday July 22, and paid for and received copies of the requested field cards.
23. It is found that the requested field cards are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
24. Section 1-19(a), G.S., provides in relevant part:
... all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours .... Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. [Emphasis added].
25. It is concluded that, notwithstanding the respondent's policy not to be available to the public one of the two days she works, her work and presence at the town hall on Thursday July 16 constituted regular office or business hours within the meaning of Section 1-19(a), G.S.
26. The respondent maintains that she did not violate the Freedom of Information Act because copies of the requested field cards were given to the complainants in person on July 22.
27. Specifically, the respondent maintains that copies of the requested records were provided within four business days of the request, in claimed compliance with 1-21i(a), G.S.
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28. Section 1-21i(a), G.S., provides:
Any denial of the right to inspect or copy records provided for under section 1-19 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request. Failure to comply with a request to so inspect or copy such public record within such four-business-day period shall be deemed to be a denial.
29. It is concluded that 1-21i(a), G.S., requires denials to requests to be issued within four days, and deems a failure to comply within four days to be a denial of the request.
30. It is concluded, however, that 1-21i(a), G.S., does not define a four-day response as either prompt or not prompt, but rather sets a time limit for the agency to issue a denial, after the expiration of which time limit the request is deemed denied and an appeal may be taken under 1-21i(b), G.S.
31. Further, it is found that in this case the respondent actually denied the complainants' request to inspect the subject records on the same day they requested it.
32. It is additionally found that the complainants' need for the information was immediate, that this need was communicated to the respondent, and that other personnel in the Goshen town hall were available to retrieve the field cards and make copies for the complainants.
33. On its own motion, the Commission takes administrative notice of its record and final decision in Docket #FIC 92-23, Gary J. Swingle against Morris Assessor.
34. In Swingle against Morris Assessor, the Commission found that the availability of other town personnel to provide access to assessment records kept locked by the assessor was relevant to a determination of whether records were provided promptly.
35. It is found that in this case, as in Swingle, the complainants could have promptly inspected the records at issue through other town personnel in the respondent's absence, had the records not been under lock and key available only to the respondent.
36. It is concluded under the facts of this case that the provision of records on July 22 was not prompt.
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37. It is also concluded that 1-19(a), G.S., provides a right of inspection, without fee, separate and distinct from the right to obtain copies, and that the respondent may not elect to provide copies for a fee as a substitute for cost-free access to the original records.
38. The respondent also maintains that she did not violate the Freedom of Information Act because the assessors of other small neighboring towns also limit their hours.
39. The complainants maintain, however, that other assessors make their field cards available through the town clerks when the assessors are not available.
40. It is concluded that the policies of other assessors are not relevant to whether the respondent violated the Freedom of Information Act.
41. The respondent also maintains that she did not violate the Freedom of Information Act because the same information was available from other records in the custody of the town clerk.
42. It is found, however, that not all the information which the complainants sought to inspect on the field cards was available from other records in the custody of the town clerk.
43. It is also concluded that the availability of records from other sources does not diminish the respondent's obligations to provide access to all public records in her custody or control under the Freedom of Information Act.
44. The respondent further maintains that she did not violate the Freedom of Information Act because she acted in conformity with the policy of the Goshen board of assessors.
45. It is concluded, however, pursuant to 1-19(a), G.S., that the policy of the Goshen board of assessors, to the extent that it diminishes the rights of the public under 1-19(a), is null and void, and is not a valid defense to a failure to comply with the Freedom of Information Act.
46. It is therefore concluded that the respondent violated 1-19(a), G.S., by failing to provide, promptly upon request, an opportunity to inspect the requested records.
47. The Commission notes that compliance with the dictates of the right to promptly inspect public records is measured on a case-by-case basis, and requires the respondent to be sensitive to the particular needs of document requesters, rather than apply hard and fast rules without exception.
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The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondent shall strictly comply with the requirements of 1-19(a), G.S.
2. The respondent shall cause a copy of the final decision in this matter to be posted on the Town Clerk's bulletin board for a period of thirty (30) days.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Stuart Groten and Stuart Lane Company
P.O. Box 132
Rocky Hill, CT 06067
P.O. Box 54
Goshen, CT 06756
Debra L. Rembowski
Acting Clerk of the Commission