FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 95-294
Gerald B. Gore, Legal Affairs Unit, State of Connecticut,
Department of Public Safety and Building Codes Standards
Committee, State of Connecticut, Department of Public Safety,
Respondents May 8, 1996
The above-captioned matter was heard as a contested case on February 15, 1996, 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 respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated August 15, 1995 and filed with the Commission on August 16, 1995, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him access to inspect and copy the May 13, 1994 tape recordings of appeal No. A-9-94 heard before the appeals panel of the respondent committee (hereinafter "tapes"). The complainant requested in his complaint that the Commission impose the maximum civil penalty upon the respondent Gore.
3. It is found that by letter dated July 11, 1995, the complainant requested that the respondent committee "advise him of the procedures required " to examine, inspect and obtain" a copy of the tapes, described in paragraph 2, above, and the resume of former state building official Donald Vigneau.
4. It is found that the July 11, 1995 letter, described in paragraph 3, above, was received on July 14, 1995 by Jane Hurley, a secretary in the respondent committee's office.
5. It is found that Hurley forwarded the July 11, 1995 letter to the respondent Gore on July 24, 1995.
Docket #FIC 95-294 Page 2
6. It is found that by letter dated July 25, 1995, the respondent Gore acknowledged receipt of the complainant's July 11, 1995 request for the resume, described in paragraph 3, above, and then, by telephone on July 27, 1995 informed the complainant that he would be provide him with a copy of the transcript of the tapes.
7. It is found that by letter dated August 1, 1995 the complainant informed the respondent Gore that he wanted a copy of the tapes and not a transcript of the proceedings.
8. It is found that on August 4, 1995 the respondent Gore agreed to provide the complainant with a copy of the tapes on August 7, 1995.
9. It is found that on August 7, 1995, the complainant visited the respondent Gore's office to pick up a copy of the tapes, however, at that time the respondent Gore denied him access to the tapes indicating that the Department of Public Safety (hereinafter "DPS") had seized the tapes in connection with an investigation.
10. It is found that the resume and tapes are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
11. It is found that on August 7, 1995 the respondent Gore provided the complainant with a copy of the requested resume, described in paragraph 3, above.
12. Accordingly, the only issues before the Commission are whether:
a. the respondents' provision of access to the resume comports with the promptness requirement of 1-19(a), G.S.; and
b. the respondents complied with 1-19(a), G.S. with respect to the request for the tapes.
13. It is found that the complainant's July 11, 1995 letter to the respondent committee, described in paragraph 3, above, is not a request to inspect or copy records but a request to be informed of the procedures to inspect and obtain records.
14. It is found that upon Hurley's receipt of the July 11, 1995 letter, described in paragraph 13, above, she did not treat it as an FOI request, but placed in the respondent committee's file folder, believing it to be a matter to be included on the respondent committee's August 9, 1995 meeting agenda.
15. It is found that not until July 24, 1995, upon
Docket #FIC 95-294 Page 3
receiving a telephone call from the complainant that he intended the July 11, 1995 letter to be a request for records, did Hurley treat the July 11, 1995 letter as such, and forward it to the respondent Gore, who handles all FOI requests for the DPS.
16. It is therefore found that not until July 24, 1995 did the respondent Gore become aware of the complainant's request for access to inspect and copy the resume and tapes.
17. With respect to the request for the resume, it is found that the resume was maintained by the respondents on July 24, 1995.
18. It is found that the respondents offered no explanation for the two week delay in providing the complainant with a copy of the resume.
19. It is therefore concluded that the respondent Gore's provision of access on August 7, 1995 was not prompt within the meaning of 1-19(a), G.S.
20. With respect to the complainant's request for a copy of the tapes, it is found that by memorandum dated August 4, 1995, Captain McGoldrick of the DPS's Division of Fire, Emergency and Building Services informed the respondent Gore of a pending criminal investigation into a complaint filed by the complainant, alleging perjury at the May 13, 1994 respondent committee's proceeding, which proceeding tapes are at issue in this complaint.
21. It is found that McGoldrick, in his August 4, 1995 memorandum, described in paragraph 20, above, indicated that "I have ordered the tapes to be sealed and locked up....The investigators will be seizing the tape as evidence on Monday."
22. It is found that upon McGoldrick's notification, described in paragraphs 20 and 21, above, the respondent Gore denied the complainant access to the tapes on August 7, 1995, as described in paragraph 9, above.
23. At the hearing on this matter, the respondents contended that they did not disclose the tapes because there was a pending criminal investigation. However, the respondents indicated their willingness to now provide the complainant with a copy of the tapes, even though the investigation has not concluded.
24. It is found that the respondents failed to prove that the tapes are exempt from disclosure pursuant to any federal or state law in accordance with the provisions of 1-19(a), G.S.
25. It is concluded that the respondents violated 1-19(a), G.S., when they failed to promptly provide the complainant with a copy of the tapes.
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26. The respondent Gore contends that he acted in good faith once he became aware of the complainant's request for the resume and tapes; that he provided access to the resume; that he was awaiting the receipt of a copy of the tapes from Hurley when he received McGoldrick's notification; and that he relied upon McGoldrick's notification in withholding access to the tapes.
27. It is found that the violations described in paragraphs 19 and 25, above, were without reasonable grounds.
28. At the hearing on this matter, the complainant also raised the issue of the respondent Gore requiring him to satisfy a condition precedent before complying with his request for access to the resume and tapes.
29. It is found, however, that because this issue was raised for the first time at the hearing it cannot be appropriately addressed in the contest of this appeal.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondents shall strictly comply with the requirements of 1-19(a), G.S.
2. The respondent Gore shall immediately remit to this Commission a civil penalty in the amount of $100.00.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 8, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Windham Center, CT 06280
Gerald B. Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety and Building Codes and Standards Committee, State of Connecticut, Department of Public Safety
c/o Henri Alexandre, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission