FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Fred S. O’Donnell,
Complainant,
against Docket #FIC 1995-351
George E. Luther, Deputy Commissioner
Division of Fire, Emergency and Building
Services, State of Connecticut, Department of
Public Safety,
Respondent, July 24, 1996
The above-captioned matter was heard as a contested case on March 7, 1996, 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. It is found that by letter dated August 11, 1995, the complainant requested that the respondent provide him with access to a copy of the following records concerning the 1995 personal services agreement between Thomas Haynes and the Department of Public Safety (“DPS”) [hereinafter “contract” or “the contract”]:
a. Haynes’ current contract;
b. a list, including case numbers, of all matters DPS assigned to Haynes, formally or informally, paid or unpaid under the contract;
c.
Haynes’
credentials for employment under the terms of the contract;
d. any billing received or pending under the terms of the contract;
Docket #FIC 1995-351 Page 2
e.
in
the event the contract with Haynes was not renewed, any contract for similar
technical services executed by any other entity; and
f.
how and where the DPS’s request for services is advertised.
3. It is found that the respondent, by letter dated August 16, 1995, informed the complainant that his request was under review and that he would be informed as soon as possible of the results of such review. The August 16 letter further indicated:
upon your remittance [of any fees due] along with
your written assurance that this information is not
for use in pending litigation to which the state is a
party the information will be sent to you.
4. It is found that the respondent, by letter dated August 18, 1995, informed the complainant that the requested records were now available and that upon its receipt of the copying charge and the written assurance, as described in paragraph 3 above, the records would be provided.
5. It is found that the complainant, by letter dated August 29, 1995, informed the respondent that missing from the requested records were:
a. contract to provide technical services;
b.
whether
the contract in 5a., above, had been
renewed or extended;
c.
Haynes’
qualifications;
d.
information
regarding the bidding process;
e.
billing;
and
f. lesson plan and handouts.
6. It is found that by letter dated August 31, 1995, the respondent provided the complainant with additional records responsive to his request, and apologized for the oversight in not having provided all of the requested records.
Docket #FIC 1995-351 Page 3
7. It is found that the complainant, by letter dated September 19, 1995, acknowledged receipt of the respondent’s August 31, 1995 letter, as described in paragraph 6, above, enclosed the requested copying charge, and made reference to the still missing contract.
8. It is found that the complainant, by letter dated November 15, 1995, again requested Haynes’ current contract making reference to his earlier August 11, 1995 request.
9. Having failed to receive all of the requested records, the complainant by letter dated November 21, 1995 and filed November 24, 1995, appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him access to the requested records. In his November 21, 1995 letter of complaint, the complainant requested that a civil penalty be imposed upon the official found directly responsible for violations of the FOI Act.
10. At
the hearing into this matter, the complainant and the respondent stipulated
that by letter dated November 22, 1995, the respondent provided the complainant
with all of the requested records.
11. The
only issues before the Commission now are whether the respondent provided
access promptly to the requested contract, and whether the respondent’s request
for written assurance that the requested records are not for use in pending
litigation, as described in paragraph 3 above, violates the FOI Act.
12. It
is found that the contract is a public record within the meaning of §1-18a(d)
and 1-19(a), G.S.
13. It
is found that the contract is effective for the period October 1, 1995 through
September 30, 1996.
14. It is found that the contract was signed by the contractor on September 22, 1995 and approved by the Commissioner of DPS on October 6, 1995.
15. The
respondent contends that the contract did not exist at the time of the
complainant’s August and September requests, as described in paragraphs 2, 5
and 7 above.
16. It
is found however, that the respondent never conveyed to the complainant in its
responses to the complainant’s request that the contract did not exist.
Docket #FIC 1995-351 Page 4
17. It is found that the respondent’s responses, as described in paragraphs 3, 4 and 6 above, indicated that the requested records, which included the contract, were available from as early as August 18, 1995.
18. It is found that the contract did not exist at the time of the complainant’s August 11 , 29 and September 19, 1995 requests, and therefore the respondent could not have provided such contract to the complainant at that time.
19. It
is found however, that on November 20, 1995 the respondent, in response to the
complainant’s November 15, 1995 renewed request, denied the complainant access
to the contract when such contract existed at that time.
20. It
is therefore concluded that the respondent violated §§1-15
and 1-19(a), G.S., when it denied the complainant prompt access to the contract
on November 20, 1995.
21. With
respect to the respondent’s request for written assurance, as described in
paragraph 3 above, it is found that such a request is an unauthorized
precondition to providing access to public records.
22 It
is concluded that the respondent violated §1-19(a),
G.S., by requiring that an unauthorized precondition be fulfilled by the
complainant prior to providing him with access to public records.
23. The
Commission declines to impose a civil penalty in this matter.
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 provisions of the FOI Act.
2. The Commission notes that this complaint could have, and should have been avoided had the respondent in its repeated correspondence to the complainant been more diligent in providing accurate information regarding the existence or non-existence of the contract. The Commission suggests that more careful attention and follow-up be paid by the respondent in addressing such FOI requests.
Docket #FIC 1995-351 Page 5
Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 1996.
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
fic1995-351/fd/mwp/07311996
Docket # FIC 1995-351 Page 6
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:
Fred S. O’Donnell
Fire Investigations
P.O. Box E
Mystic, CT 06355-0905
George E. Luther, Deputy Commissioner
Division of Fire, Emergency and Building Services
State of Connecticut, Department of Public Safety
c/o Asst. Atty. Gen. Henri Alexander
110 Sherman Street
Hartford, CT 06105
__________________________
Doris V. Luetjen
Acting Clerk of the Commission