FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final
Decision
Blaine W. Buck,
Complainant
against Docket
#FIC 1995-409
Chairman, Somers Zoning Commission,
Respondent October
23, 1996
The
above-captioned matter was heard as a contested case on May 10, 1996, at which
time the complainant and the respondent appeared 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 letter of complaint filed with this
Commission on December 12, 1995, the complainant alleged that the respondent
violated the provisions of the Freedom of Information (“FOI”) Act by, in
essence, denying his November 30, 1995 request for the name of the individual
who conducted an investigation of the complainant’s complaint against the
Somer’s zoning enforcement officer (“zoning complaint”) along with copies of
the findings of that investigation.
3. It is found that by letter of response dated
December 6, 1995, the respondent indicated that after having reviewed the file
to which the complainant referred in his November 30, 1995 letter, the
respondent found no document naming such individual, and that with respect to
the findings of the investigation, although the respondent had already mailed a
letter containing such findings to the complainant, the respondent would be
happy to either provide a copy at $.50 per page or the complainant could review
the file during business hours at the zoning office.
4. It is found that no record exists in the
respondent’s or zoning office files containing the name of the individual who
conducted the investigation identified in paragraph 2, above, although
testimony at the hearing into this matter established that Mr. Childs conducted
that investigation.
5. It is found that the investigation findings
identified in paragraph 2, above, are public records within the meaning of §1-18a(d),
G.S.
6. It is found that on December 7, 1995, the
complainant went to the zoning office where he reviewed the file referred to in
the respondent’s December 6, 1995 response.
7. It is found that after Mr. Childs
investigated the complainant’s zoning complaint identified in paragraph 2,
above, he wrote a draft letter of response to the complainant, on behalf of the
zoning commission, initially dated July 25, 1995.
8. It is also found that after consultation
with the zoning commission, the respondent made revisions to the July 25, 1995
draft by Mr. Childs which revisions were added to the body of the July 25, 1995
draft and made part of the final August 11, 1995 letter of response sent to and
received by the complainant concerning his zoning complaint.
9. It is found that when the complainant
examined the zoning files on December 7, 1995, he for the first time found the
July 25, 1995 draft letter.
10. In his complaint to this Commission, the
complainant complains about the discrepancies between the July 25, 1995 draft
letter contained in the zoning files and the August 11, 1995 letter that was
actually received by him.
11. The complainant’s allegations identified in
paragraph 10, above, do not state a claim concerning violation of the
provisions of the FOI Act.
12. It is found that during the operative
time-period of the complaint in this matter, the respondent did not deny the
complainant access to or copies of public records.
13. It is accordingly concluded that the
respondent is not in violation of the provisions of the FOI Act under the facts
of this case.
14. At the hearing into this matter, the
complainant requested the recusal of the respondent’s attorney claiming that
the attorney “represents the board of selectmen against the zoning commission,”
presumably in other matters.
15. At the hearing into this matter, the
respondent’s attorney indicated that he is not currently representing anyone in
any action against the zoning commission, but that in any event, the issue of
any potential conflict of interest regarding his clients is a matter between
him and his clients and is not properly for this Commission to consider.
16. It is beyond this Commission’s statutory
authority to interfere with or question the attorney-client relationship in the
matter raised by the complainant and identified in paragraph 14, above.
17. Also at the hearing into this matter the
respondent moved that this Commission determine that the appeal was taken
frivolously, without reasonable grounds and solely for the purpose of harassing
the agency from which the appeal has been taken pursuant to §1-21i(b)(2),
G.S.
18. Section 1-21i(b)(3), provides in pertinent
part:
In making the findings
and determination under subdivision (2) of this subsection the commission shall
consider the nature of any injustice or abuse of administrative process,
including but not limited to: (A) the nature, content, language or subject
matter of the request or the appeal; (B) the nature, content, language or
subject matter of prior or contemporaneous requests or appeals by the person
making the request or taking the appeal; and ( C) the nature, content, language
or subject matter of other verbal and written communications to any agency or
any official of any agency from the person making the request or taking the
appeal.
19.
It is found that in January 1996, the
complainant testified against the respondent at a proceeding of the local
ethics commission.
20. The respondent claims that as a result of
the proceedings identified in paragraph 19, above, the complainant learned
certain facts that would have prompted a reasonable person to withdraw the FOI
complaint that had been filed by the complainant in this case on December 12,
1995.
21. It is found that the complainant’s failure
to withdraw his FOI complaint in January 1996 does not establish that the
December 12, 1995 appeal to this Commission was frivolous, without reasonable
grounds and solely for the purpose of harassing the respondent.
22. Furthermore, the Commission finds nothing in
the nature, content language or subject matter of the request or appeal in this
matter or any other verbal or written communications to the respondent or
zoning commission that would indicate an intent to harass the respondent on the
part of the complainant within the meaning of §§1-21i(b)(2)
or 1-21i(b)(3), G.S.
23. It is concluded that the respondent failed
to establish that this appeal was taken frivolously, without reasonable grounds
and solely to harass the respondent within the meaning of §1-21i(b)(2),
G.S..
24. The respondent’s motion identified in
paragraph 17, above, is hereby denied.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information
Commission at its regular meeting of .
__________________________
Elizabeth A. Leifert
Acting 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:
Blaine W. Buck
48 Blue Ridge Mountain Drive
Somers, CT 06071
Chairman, Somers Zoning Commission,
c/o
Thomas W. Fahey, Jr., Esq.
487 Spring Street, Suite Two
Windsor Locks, CT 06096
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission