FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 94-167
Chairman, State of Connecticut Workers' Compensation Commission,
Respondent April 5, 1995
The above-captioned matter was heard as a contested case on January 20, 1995, 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 #FIC 94-206, David Cummings against Chairman, State of Connecticut Workers' Compensation Commission.
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 26, 1994, the complainant appealed to the Commission, alleging that the respondent failed to fully comply with the Commission's order in docket #FIC 93-262, David W. Cummings against Chairman, Workers Compensation Commission, and requesting the imposition of a civil penalty against the respondent.
3. Specifically, the complainant alleged that the respondent failed to comply with paragraph 4 of the Commission's order in docket #FIC 93-262.
4. Paragraph 4 of the order in docket #FIC 93-262 provides:
Within thirty days of the date of mailing the notice of final decision in this case, the complainant shall either be provided with a copy of the audiotape, free of charge, or an affidavit from the respondent that a diligent search has been conducted of all office locations where files concerning the complainant were held, and the audiotape was not found.
5. The final decision in docket #FIC 93-262 was mailed on March 23, 1994.
Docket #FIC 94-167 Page 2
6. The respondent maintains that he complied with the Commission's order by sending a May 13, 1994 letter to the complainant, which letter represented the facts that were required by the Commission's order.
7. It is found that the May 13, 1994 letter is dated 51 days after the final decision in FIC 93-262 was mailed.
8. It is further found that the May 13, 1994 letter satisfies paragraph 4 of the order in docket #FIC 93-262 insofar as the search is described and the tape is declared not to have been found; but the letter is not in the form of an affidavit, and the contents were not sworn to by the respondent at the time the letter was written.
9. At the request of the respondent, the Commission takes administrative notice of a Funk & Wagnall's 1947 dictionary definition of an affidavit as "any solemn or formal declaration."
10. On its own motion, the Commission also takes administrative notice of Black's Law Dictionary (5th ed.) definition of an affidavit as a "written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." [Emphasis added].
11. Also on its own motion, the Commission additionally takes administrative notice of the American Heritage Dictionary (2d College Edition) definition of an affidavit as a "written declaration made under oath before a notary public or other authorized officer." [Emphasis added].
12. It is concluded that both the everyday and legal definitions of affidavit contain the requirement that the declaration be made under oath before a person having the authority to administer an oath.
13. It is found that the declarations in the respondent's May 13, 1994 letter were not made under oath at the time the letter was signed.
14. It is also found that the respondent's May 13, 1994 letter was not provided to the complainant within 30 days of the mailing of the final decision in docket #FIC 93-262.
15. It is concluded that the respondent's May 13, 1994 letter does not comply with the order in docket #FIC 93-262, which required an affidavit to be provided within a specified period of time.
16. It is found that the respondent eventually provided to the complainant an affidavit dated June 15, 1994, 84 days after the mailing of the final decision in docket #FIC 93-262.
Docket #FIC 94-167 Page 3
17. It is found that, in the affidavit, the respondent swears before a notary public that the statements in his May 13, 1994 letter are true.
18. It is found that the June 15, 1994 affidavit, while not timely, otherwise complies with paragraph 4 of the Commission's order in docket #FIC 93-262.
19. It is nonetheless concluded that the respondent failed to comply with paragraph 4 of the Commission's order in docket #FIC 93-262 within the time period set forth in that order.
20. With respect to the complainant's request that a civil penalty be imposed against the respondent, 1-21i(b), G.S., provides in relevant part:
... upon the finding that a denial of any right created by sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
21. It is concluded that the failure to obey an order of the Commission is a denial of a right created by the Freedom of Information Act.
22. It is found that the respondent's claim concerning the meaning of the word "affidavit," given the respondent's position and the presumed availability to him of legal counsel, was not reasonable.
23. It is also found that the respondent's failure to comply with the Commission within the required 30 days was without reasonable explanation.
24. It is therefore concluded that the respondent's failure to comply with paragraph 4 of the Commission's order in docket #FIC 93-262 was without reasonable grounds within the meaning of 1-21i(b).
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
Docket #FIC 94-167 Page 4
1. The respondent shall forthwith remit to the Commission a civil penalty in the amount of $25.00.
2. Henceforth the respondent shall strictly comply with the orders of the Commission.
Approved by Order of the Freedom of Information Commission at its special meeting of April 5, 1995.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-167 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:
100 Boatswains Way #504
Chelsea, MA 02150
CHAIRMAN, STATE OF CONNECTICUT, WORKERS' COMPENSATION COMMISSION
c/o Michael J. Giammatteo, Esq.
Brewster Blackall, Esq.
Assistant Attorneys General
P.O. Box 120
Hartford, CT 06141-0120
Debra L. Rembowski
Clerk of the Commission