In the Matter of a Complaint by                        FINAL DECISION


Susan DeFrancesco,




            against              Docket #FIC 94-69


State of Connecticut Department of Environmental Protection,


                        Respondent                  September 14, 1994


            The above-captioned matter was heard as a contested case on August 4, 1994, 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 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 March 4, 1994, the complainant appealed to the Commission, alleging that her February 15, 1994 request for certain records had been denied.


            3.         It is found that the complainant by letter dated February 15, 1994 requested all permits, exemptions and related documentation of the person who had possession between February 18 and 26, 1993 of the cats confiscated from her by the Department of Environmental Protection ("DEP").


            4.         It is found that the complainant had, since September of 1993, made an ongoing attempt to obtain information from the respondent concerning the confiscation of her cats.


            5.         It is found, given the extensive history between the parties to this complaint, that the complainant's February 15, 1994 request is reasonably read as a request for permits, licenses and other forms of documentation that authorize the person who had possession of the complainant's cats to care for them, and documentation of the February 18 to 26, 1993 period of confiscation.


            6.         It is found that the respondent provided no records responsive to the complainant's request until three days before the hearing in this matter, when it delivered a package of some 93 pages to the complainant, together with a direction to her to mail a check in the amount of $46.50 to the respondent for the documents.


Docket #FIC 94-69                             Page 2


            7.         It is found that the documents provided to the complainant include two federal fish and wildlife permits (expiration dates 12/31/95 and 12/31/92); three DEP wildlife custodian permits (expiration dates 12/31/92, 12/31/93 and 12/31/94); a DEP nuisance wildlife control volunteer permit; two DEP game breeder's licenses (expiration dates 12/31/93 and 12/31/92); and two DEP nuisance wildlife control program volunteer appointments (expiration dates 12/31/92 and 12/31/93).


            8.         At the hearing, the respondent conceded that most of the documents provided to the complainant were irrelevant to her request.


            9.         Specifically, it is found that none of the remaining 86 or so pages of documents, which consist largely of the permit-holder's activity reports, are responsive to the complainant's request.


            10.       It is also found that all of the records provided to the complainant are public records within the meaning of 1-18a(d) and 1-19(a), G.S.


            11.       It is found that the respondent failed to prove why it needed six months to provide ten pages of records that were actually responsive to the complainant's request.


            12.       It is also found that the remaining 86 pages of documents appear to be nothing more than an eleventh-hour attempt by the respondent to inflate the difficulty of complying with the complainant's request.


            13.       It is concluded that the respondent violated 1-15(a) and 1-19(a) by failing to provide the records described in paragraph 7, above, promptly upon request.


            14.       It is also concluded that the respondent is not permitted by 1-15(a), G.S., to charge the complainant for the cost of the 86 pages of documents described in paragraph 9, above, since those records were not responsive to her request.


            15.       The complainant maintains that the respondent's delay in providing records to her is typical of a process over a period of nearly a year in which her requests to the respondent went unfulfilled.


            16.       It is found that the record before the Commission in this matter supports the complainant's contention that the respondent, in the events leading up to this particular complaint, has been less than a model of compliance with her requests under the Freedom of Information ("FOI") Act.


Docket #FIC 94-69                             Page 3


            17.       It is concluded, however, that the Commission lacks jurisdiction to address any alleged violations of the FOI Act occurring more than thirty days before the date this complaint was filed.


            18.       The complainant also maintains that the records delivered to her are incomplete.


            19.       It is found that none of the records provided to the complainant make any reference to custody of the complainant's three cats, or are licenses permitting the holder to care for such cats.


            20.       The respondent maintains that it has no records pertaining to the February 18 to 26, 1993 period when the cats were in the temporary custody of the holder of the licenses and permits described in paragraph 7, above.

            21.       Specifically, the respondent maintains that the animals were not placed with the permit holder pursuant to any of his licenses or permits--for example, as injured or orphaned animals--but rather as evidence in the enforcement of 26-40a, G.S., which prohibits possession of certain potentially dangerous animals.


            22.       The respondent also maintains that the permit holder was not required by the conditions of any of his permits or licenses to keep of record of the time he had the animals in his custody.


            23.       The complainant maintains, and the Commission agrees, that common sense and good record-keeping principles reasonably suggest that the respondent would keep records of the chain of custody of the cats, particularly if they were, as the respondent argues, being kept as evidence relevant to the enforcement of a statute.


            24.       At the hearing, the respondent maintained that it had no other records directly responsive to the complainant's request for records of the cats' custody during the period February 18 to 26, 1993.


            25.       It is found, however, that the respondent's only witness, while generally familiar with the respondent's records, had no personal knowledge of the events leading up to the complainant's request, and had not himself searched the respondent's records.


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


Docket #FIC 94-69                             Page 4


            1.         The respondent shall forthwith conduct a diligent search for any records that would document the custody of the complainant's animals during the period February 18 to 26, 1993.  The search shall be conducted by an individual with personal knowledge of the animals' confiscation.  The search shall include inquiry of the individual who had actual possession of the animals during the period in question, and that individual's records.  The search shall also include inquiry of any persons responsible for maintaining a record of the chain of custody of evidence used in the 26-40a, G.S., enforcement action against the complainant.  Any records discovered during this search shall be delivered to the complainant within 45 days of the date this final decision is mailed, at no cost to the complainant.  If no such records are found, the respondent shall provide, within 45 days of the date this final decision is mailed, an affidavit to the complainant attesting in detail to the steps that were taken, and by whom, in the search for records, including all individuals contacted for information about such records, and attesting that no records were found.


            2.         The respondent shall remit to the complainant any fees received for the 86 pages of records described in paragraph 9 of the findings, above.


            3.         Henceforth the respondent shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.


Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 1994.



                                    Debra L. Rembowski

                                    Clerk of the Commission






15 Bryson Avenue

Seymour, CT 06483; and

c/o Pat Farrell

37 North Road

Ashford, CT 06278



c/o Elliot D. Prescott, Esq.

Assistant Attorney General

55 Elm Street, 2nd Floor

Hartford, CT 06106



                                    Debra L. Rembowski

                                    Clerk of the Commission