FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 94-138
Norwalk Conservation Commission,
Respondent March 22, 1995
The above-captioned matter was heard as a contested case on October 25, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with docket numbers FIC 94-127, Lloyd Crossland against Norwalk Conservation Commission; FIC 94-146, Lloyd Crossland against M. Jeffry Spahr, Norwalk Deputy Corporation Counsel, and Lester Bell, Chairman, Norwalk Conservation Commission; and FIC 94-228, Lloyd Crossland against Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.
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 May 2, 1994, as amended by letter dated July 12, 1994, the complainant appealed to the Commission, alleging that his April 13, 1994 request for certain records had been denied on April 25, 1994, and requesting the imposition of civil penalties.
3. It is found that the complainant by letters dated April 13, 1994 requested from the chairman of the respondent conservation commission copies of the following documents:
a. an invoice relating to work done by Leonard Jackson;
b. audio tapes of the conservation commission's November 14, 1983 and March 17, 1986 meetings; and
c. the adopted motion and the audiotapes of the April 12, 1984 meetings.
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4. It is found that respondent answered the complainant's April 13 request by a letter dated April 25, 1994, but did not then provide copies of any of the requested records.
5. It is found that the complainant at all times material to this matter had an inland-wetlands application before the respondent conservation commission.
6. It is found that the Norwalk department of public works retained a consultant to comment on drainage at the property that was the subject of the inland-wetlands application.
7. It is found that an invoice reflecting the consultant's work and fee was in the file maintained by the respondent concerning the inland-wetlands application.
8. It is concluded that the invoice is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
9. The respondent makes no claim that the invoice is exempt from disclosure.
10. It is found that the respondent failed to provide a copy of the invoice to the complainant.
11. It is concluded that the respondent violated 1-15(a) and 1-19(a), G.S.
12. It is found that the respondent made audiotapes of its November 14, 1983, March 17, 1986 and April 12, 1994 meetings.
13. It is concluded that the requested audiotapes are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
14. It is found that the complainant received a copy of the April 12, 1994 audiotape, and that his receipt of that tape is not at issue in this case.
15. The respondent maintains that the March 17, 1986 meeting tape cannot be located.
16. At the request of the respondent, the Commission takes administrative notice of the fact that the minimum retention period required for audio tapes of inland wetland matters is four years.
17. It is found, however, that the respondent has retained and made available to the complainant tapes from as far back as at least 1981, and offered no evidence as to why the March 17, 1986 tape may not have been retained.
Docket #FIC 94-138 Page 3
18. It is also found that the respondent produced no testimony or exhibits to prove that the March 17, 1986 meeting tape either was re-used or has been diligently searched for.
19. The respondent maintains that the tape of the November 14, 1983 meeting was made available to the complainant at a May 5, 1993 deposition, while the complainant maintains that it was not.
20. It is found that the respondent by letter dated May 12, 1994 offered to make the original tape available to the complainant, but requiring the complainant to make arrangments to copy the tape at his own expense.
21. Section 1-15(a), G.S., provides in part that "[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."
22. It is found that the cost of a copy of the audiotape is not before the Commission, since no copy was made.
23. It is concluded that, cost issues aside, the respondent may not require the complainant to make his own copy of a public record.
24. Furthermore, whether or not the November 14, 1983 meeting tape had been made available a year earlier, it is found that the respondent denied the complainant's April 19, 1994 request for a copy of the tape.
25. It is therefore concluded that the respondent violated 1-15(a), G.S., by failing to provide a copy of the requested audiotape.
26. It is found that, at the respondent's April 12, 1994 meeting, a member of the respondent read a motion from a two-page typewritten document, which motion was adopted by the respondent.
27. It is concluded that the requested motion is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
28. The respondent makes no claim that the requested record is exempt from disclosure.
29. It is concluded that the respondent violated 1-15(a) and 1-19(a), G.S., by failing to provide to the complainant a copy of the written motion.
30. At the hearing, the respondent offered no reasonable grounds for denying the complainant's requests for any of the
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records at issue in this case, except to claim that it has made all its records available to the complainant in an effort to settle this case, and to claim that it is unclear what records the complainant is seeking.
31. It is concluded that efforts made to settle this case are not relevant to the Commission's determination of whether the respondent's denial was without reasonable grounds.
32. Also, it is found that the complainant's request for records in this case was entirely clear.
33. It is concluded that the respondent's denial of the complainant's requests was without reasonable grounds.
34. The Commission notes that the issue of civil penalties is addressed in the cases that were consolidated with this case, in which complaints were made against individually named respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide to the complainant a copy of audiotape of the respondent's November 14, 1983 meeting.
2. The respondent shall forthwith conduct a diligent search for the audiotape of its March 17, 1986 meeting and either provide a copy of the audiotape to the complainant, or provide to the complainant an affidavit attesting to its search and that no such tape exists. The search shall be conducted, and the affidavit executed, by the respondent's senior environmental officer. The affidavit shall recite the method of the search, the records that were searched, the location of those records, and the date and duration of the search.
3. The respondent shall forthwith provide to the complainant a copy of the requested written motion, as described in the findings, above.
4. The respondent shall forthwith provide to the complainant a copy of the requested invoice, as described in the findings, above.
5. Henceforth the respondent shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.
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Approved by Order of the Freedom of Information Commission at its regular meeting of March 22, 1995.
Debra L. Rembowski
Clerk of the Commission
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:
64 Range Road
Wilton, CT 06897
c/o Ridgely Brown, Esq.
Brown & Brown
P.O. Box 1205
Darien, CT 06820
NORWALK CONSERVATION COMMISSION
c/o Sarah Oley, Esq.
M. Jeffry Spahr, Esq.
Corporation Counsel's Office
P.O. Box 798
Norwalk, CT 06856-0798
Debra L. Rembowski
Clerk of the Commission