FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 94-295
State of Connecticut, Department of Administrative Services,
Respondent May 24, 1995
The above-captioned matter was heard as a contested case on March 27, 1995, 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 letters dated February 7 and May 4, 1994, the complainant requested a copy of all records which were made of interviews with the respondent's staff conducted by Moira Butler in the Fall of 1993.
3. The respondent did not reply to the complainant's records requests described in paragraph 2, above.
4. By letter dated August 4, 1994, the complainant reiterated her request for a copy of the records described in paragraph 2, above.
5. By letter dated August 10, 1994 the respondent's director of communications indicated that the complainant's request had been forwarded to him and that because there was "an ongoing administrative action regarding this matter, the Freedom of Information (hereinafter, "FOI") Act would not apply" to the requested records under 1-19b(b)(1), G.S.
6. By letter of complaint dated August 24, 1994 and filed August 26, 1994, the complainant appealed the respondent's denial of access to the requested records to this Commission.
Docket #FIC 94-295 Page 2
7. It is found that the records requested by the complainant pertain to the respondent's internal investigation during the Fall of 1993 of a discrimination complaint filed by the complainant.
8. It is concluded that the requested records are public records within the meaning of 1-18a(d), G.S.
9. It is found that at the time of the complainant's requests described in paragraphs 2 and 4, above, the complainant had a complaint pending before the state Commission on Human Rights and Opportunities (hereinafter "CHRO") concerning the respondent's disposition of the complaint described in paragraph 7, above, which matter was still pending before CHRO at the time of the hearing on this matter.
10. It is found that on July 25, 1994, a CHRO investigator requested a copy of the subject records from the respondent in connection with his investigation of the CHRO complaint and that on or about August 3, 1994, the respondent provided the CHRO investigator with a copy of the requested records.
11. It is also found that the CHRO investigator requested such records from the respondent at the complainant's behest because she had received no response from the respondent to her February and May 1994 requests made directly to the respondent.
12. It is also found that under cover letter dated December 16, 1994, the respondent's director of communications provided the complainant with a copy of the requested records and indicated they were being provided at that time "due to a recent change in the law allowing its release."
13. At the hearing on this matter, the respondent first moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that the Commission failed to comply with the requirements of 1-21i(b)(1), G.S., with respect to the Commission's notification to the respondent of the subject complaint. Essentially, the respondent maintains that the Commission failed to provide the respondent with a copy of the complaint in a timely manner and failed to send a copy of the complaint by certified or registered mail as required under 1-21i(b)(1), G.S.
14. The respondent claims that it is prejudiced by the Commission's alleged failures described in paragraph 13, above, because if the respondent had received a copy of the subject complaint on an earlier date it would have been aware that such a complaint was pending with the Commission, contacted the Attorney General's office for counsel; learned on an earlier date that the law it had relied upon in denying the complainant's request in August 1994 had changed; and would then have provided the complainant with a copy of the subject records at a much earlier date.
Docket #FIC 94-295 Page 3
15. Section 1-21i(b)(1), G.S., provides in relevant part:
"Upon receipt of such notice [of appeal], the Commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission."
16. It is found that on or about November 4, 1994, the acting clerk of the Commission sent the parties, by regular mail, a copy of the complaint in this matter along with a cover letter asking the parties to apprise the Commission of any potential scheduling conflicts and informing them that they would be notified of a Commission hearing date. The respondent received the cover letter and complaint on or about November 30, 1994.
17. It is further found that subsequent to the mailing described in paragraph 16, above, the Commission sent the parties, by certified mail, a copy of the complaint along with a Notice of Hearing and Order to Show Cause on March 6, 1995.
18. It is concluded that the notice provided to the parties, described in paragraph 17, above, satisfies the requirements of 1-21i(b), G.S., consequently, the respondent's motion to dismiss was denied at the hearing on this matter.
19. It is further concluded that the respondent's argument, as described in paragraph 14, above, does not establish prejudice because the violation of the complainant's rights under the FOI Act, if any, would have occurred when the respondent denied her request for records, not when the respondent sought counsel to defend it in a subsequent proceeding before this Commission. Indeed, the respondent's substantive defense, as set forth below, is based on the law in effect at the time of the respondent's denial. In addition, it is concluded that ignorance of the law by a public agency does not excuse a violation of the FOI Act.
20. The respondent maintains that it did not violate the FOI Act because at the time of the complainant's request, the subject records were exempt under the then operative language of 1-19b(b)(1), G.S.
21. At the time the complainant was denied access to the requested records, 1-19b(b)(1), G.S., provided in relevant part, that nothing in the FOI Act shall be deemed to:
"(1)...affect the rights of litigants, including the parties to administrative proceedings, under the laws of discovery of this state...."[Emphasis added.]
Docket #FIC 94-295 Page 4
22. Specifically, the respondent maintains that its original denial was appropriate due to the pending CHRO matter and the CHRO investigator's request for the same records as described in paragraphs 10 and 11, above.
23. It is found that when the respondent received a copy of the complaint from the Commission in November 1994, as described in paragraphs 16 and 17, above, it then contacted the Attorney General's Office and was informed that the law had changed as of October 1, 1994 to read that nothing in the FOI Act shall be deemed to:
"(1)...limit the rights of litigants, including the parties to administrative proceedings, under the laws of discovery of this state...."[Emphasis added.]
24. It is found that the respondent then provided the complainant with a copy of the requested records on December 16, 1994, as described in paragraph 12, above.
25. It is concluded however that, despite the pending CHRO matter, the respondent failed to prove that disclosure of the requested records would somehow have "affected" the rights of litigants under the laws of discovery of this state, within the meaning of 1-19b(b)(1), G.S., as it existed at the time of the complainant's requests.
26. Consequently, it is concluded that the respondent violated the provisions of 1-15(a), G.S., by failing to provide promptly to the complainant a copy of the requested records.
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 1-15(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 24, 1995.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-295 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:
P.O. Box 380752
East Hartford, CT 06118
STATE OF CONNECTICUT, DEPARTMENT OF ADMINISTRATIVE SERVICES
c/o Sharon A. Scully, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06238
Debra L. Rembowski
Clerk of the Commission