FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 94-65
Dominick M. DiGangi, Director, Norwalk Department
of Public Works, Peter L. Romano, Principal Engineer
Construction, Norwalk Department of Public Works and Norwalk
Department of Public Works,
Respondents January 11, 1995
The above-captioned matter was heard as a contested case on July 26, 1994 at which time the complainant appeared but no one appeared on behalf of the then respondent Norwalk Department of Public Works ("department"), and then on August 23, 1994, 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 and conclusions of law are reached:
1. The respondent director and department are public agencies within the meaning of 1-18a(a), G.S.
2. By letter to the respondent director dated January 31, 1994 the complainant requested under the Freedom of Information Act access to certain information pertaining to a pavement problem on Knob Hill Road in the City of Norwalk and copies of records evidencing measures taken by the city to correct the problem.
3. Having received no response from the respondent director to his written request or to telephone calls thereafter, the complainant appealed to this Commission, by letter dated February 23, 1994 and filed February 28, 1994.
4. At the July 26, 1994 hearing on this complaint, the complainant maintained that sometime in May 1994 he was granted access to inspect certain records relating to his request, but
Docket #FIC 94-65 Page 2
that he was asked to leave after a short while, and that while he was able to obtain some information, due to a lack of time he could not ascertain whether the file contained all of the records or information he was seeking. The complainant indicated that he was still seeking access to a work order and/or a written report evidencing that corrective work had actually been performed on Knob Hill Road, as claimed by the respondents.
5. It is found that the failure of the respondent department to appear at the July 26, 1994 hearing on this matter, likewise made it difficult for the undersigned hearing officer to ascertain what records the department maintained that were responsive to the complainant's request. Consequently, the undersigned hearing officer was compelled to subpoena the individuals named in the caption of this report to appear at the August 23, 1994 hearing and to show cause why a civil penalty should not be imposed.
6. At the August 23, 1994 hearing, counsel for the respondents filed a motion to quash the subpoena against the respondent director on the ground that he was away on the hearing date, which motion was denied at that time.
7. It is found that to the extent records exist that contain information responsive to the complainant's request, such records are contained in the respondent department's "road patch file" and are public records within the meaning of 1-18a(d).
8. It is found that there was no response to the complainant's January 31, 1994 request until April 12, 1994, when respondent Romano, by letter, requested that the complainant contact him to set up a time for the complainant to inspect the subject road patch file.
9. It is found that the complainant attempted to contact respondent Romano on several occasions after receiving his April letter, but learned that respondent Romano was on vacation. In early May 1994, the complainant went to respondent Romano's office and was told to make an appointment to review the subject file, which he then made for the morning of May 25, 1994.
10. It is also found that the complainant went to inspect the subject file on May 25, 1994 but was only permitted a short amount of time to conduct an inspection before respondent Romano informed the complainant that he needed to use the room where the complainant was viewing the file and that he would have to make an appointment to come back another time.
11. It is further found that the complainant attempted thereafter to contact respondent Romano, but that his calls were not returned.
Docket #FIC 94-65 Page 3
12. During the August 23, 1994 hearing, respondent Romano testified that much of the information or records sought by the complainant, do not exist.
13. In material part, 1-19(a), G.S., provides:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.
14. In material part, 1-15(a), G.S., provides:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
15. It is therefore concluded that the respondents' failure to respond to the complainant's January 31, 1994 request until more than two months after such request and then additionally causing further delays of more than one month in providing limited access, as described in paragraphs 8 through 11, above, constitute a violation of the requirements set forth in 1-15(a) and 1-19(a), G.S., for prompt access to public records.
15. It is found that the only reason for the delay in responding to the complainant's request and granting him access to inspect the subject file was that the complainant's request was simply not considered a matter of priority.
16. It is found that the April 12, 1994 response to the complainant's request occurred only because of written instruction from the respondents' counsel upon notification that a complaint had been filed against the respondent department.
17. It is therefore concluded under the facts and circumstances of this case, that the respondent director, as the official from whom the complainant requested access and who is directly responsible for public access to the records maintained by his department, violated the complainant's rights to prompt access to public records under 1-15(a) and 1-19(a), G.S., and that such violation was without reasonable grounds within the meaning of 1-21i(b)(2), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
Docket #FIC 94-65 Page 4
1. Henceforth, the respondent director shall strictly comply with the provisions of 1-15(a) and 1-19(a), G.S., in providing prompt access to public records maintained by his department.
2. The Commission imposes a civil penalty against the respondent director in the amount of one hundred dollars ($100.00). The aforementioned civil penalty shall be remitted to the Commission within thirty days of the date of the mailing of the notice of final decision in this matter.
3. The Commission admonishes the respondent department for its failure to appear at the July 26, 1994 hearing on this matter and warns the respondent director that his failure to honor a Commission subpoena in the future will lead to the imposition of more serious sanctions, as permitted by law.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 1995.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-65 Page 5
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:
21 Knob Hill Road
Norwalk, CT 06851
DOMINICK M. DIGANGI, DIRECTOR, NORWALK DEPARTMENT OF PUBLIC WORKS, PETER L. ROMANO, PRINCIPAL ENGINEER CONSTRUCTION, NORWALK DEPARTMENT OF PUBLIC WORKS AND NORWALK DEPARTMENT OF PUBLIC WORKS
c/o M. Jeffry Spahr, Esq.
Norwalk Law Department
P.O. Box 798
Norwalk, CT 06856-0798
Debra L. Rembowski
Clerk of the Commission