FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-232
June 25, 1997

In the Matter of a Complaint by John J. Finn, Complainant
against
Mark A. Lauretti, Mayor, City of Shelton; and Sandra M. Nesteriak, Administrative Assistant, City of Shelton, Respondents

The above-captioned matter was heard as a contested case on November 25, 1996 and January 17, 1997, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket # FIC 1996-309, John J. Finn v. Mark A. Lauretti, Mayor, City of Shelton; and Sandra M. Nesteriak Administrative Assistant, City of Shelton, was consolidated with the above-captioned matter for purpose of hearing.

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. It is found that at a June 13, 1996 regular meeting of the city of Shelton Board of Aldermen ("the meeting"), the complainant, an alderman, requested that "the administration" provide him with copies of the following records, pertaining to the hiring of a part time consultant (hereinafter "consultant" or "part time employee" or "temporary employee"):

a. the contract between the city of Shelton and the consultant, outlining the scope of work to be performed;

b. the completed audit performed by the consultant;

c. memoranda between the consultant, administration and the administrative assistant; and

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d. problems uncovered and recommendations made by the consultant.

3. It is also found that at the meeting, the complainant asked that the "administration" answer four questions. At the hearing on this matter, the complainant withdrew his complaint with respect to such questions.

4. It is found that by letters dated June 13, June 24 and July 1, 1996, the complainant renewed his requests, described in paragraphs 2 and 3 of the findings, above, and directed such requests to the respondent administrative assistant.

5. It is found that by letter dated July 1, 1996, the complainant requested that the respondent mayor provide him with all records reflecting that the consultant was paid as a part time employee, the consultant’s date of hire and the consultant’s biweekly time cards.

6. It is found that by letter dated July 2, 1996, the complainant requested that the respondent administrative assistant provide him with a copy of the Merit System.

7. By letter dated July 2, 1996 and filed with the Commission on July 5, 1996, the complainant alleged that the respondents violated the Freedom of Information ("FOI") Act by denying him copies of the records described in paragraphs 2, 4, 5 and 6 of the findings, above. In his July 2, 1996 complaint, the complainant requested that the Commission impose civil penalties upon the respondents.

8. It is found that the respondents maintain some of the requested records, and such records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

9. With respect to the requests as described in paragraphs 2a, 2b, 2c, 2d and 4 of the findings, above, it is found that at the meeting, the respondent mayor acknowledged the complainant’s requests described in paragraph 2 of the findings, above, and informed the complainant that "we will be happy to respond" and that "[Y]ou are confused about one of the issues here. This is not a consultant situation. This is a part time employee which is allowable by Charter and the Merit System."

10. It is found that by memorandum dated July 3, 1996 the respondent mayor informed the complainant that the person hired, Mr. Grant (hereinafter "Grant"), was not a consultant, that the term "consultant" was a misstatement, that there was no consultant, that no contract was required for a "temporary employee" and that the audit was not complete.

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11. It is also found that the respondent administrative assistant, by memorandum dated August 14, 1996 provided the complainant with a copy of the "Employee Benefit Report" in response to the complainant’s request for a completed audit.

12. It is found that no records responsive to the request for a completed audit exist, except for the Employee Benefit Report provided to the complainant and described in paragraph 11, of the findings, above.

13. It is found that the complainant and the respondents have been engaged in a debate over whether Grant is a consultant or a part time employee. It is also found that the respondents knew that the complainant was requesting records pertaining to Grant although the complainant referred to him as a consultant and the respondents referred to him as a part time employee.

14. It is found that the respondent mayor’s July 3, 1996 response, described in paragraph 10 of the findings, above, was not responsive with respect to the complainant’s request for a contract, in that the response indicated that a contract is not required and did not address whether a contract existed. In addition, the July 3, 1996 response, did not address the complainant’s request for memoranda, problems uncovered and recommendations of Grant. Further, the July 3, 1996 response, approximately three weeks after the complainant’s June 13, 1996 request, was not prompt.

15. It is found that no contract exists, and that memoranda and correspondence between the administrative assistant and Grant, and memoranda between the administrative assistant and city departments, exist. It is further found that such memoranda and correspondence were provided to the complainant by the respondent administrative assistant by memorandum dated August 15, 1996.

16. It is found that no written recommendations exist.

17. It is concluded that with respect to the complainant’s June 13, 24 and July 1, 1996 requests described in paragraphs 2 and 4 of the findings, above, the respondents violated 1-15(a) and 1-19(a), G.S., by failing to promptly provide the complainant with the memoranda, correspondence and Employee Benefits Report existing at the time of such requests, and which the respondent administrative assistant eventually provided to the complainant on August 14 and 15, 1996, as described in paragraphs 11 and 15 of the findings, above.

18. With respect to the complainant’s request as described in paragraph 5 of the findings, above, it is found that by memorandum dated July 11, 1996, the respondent administrative assistant provided the complainant with Grant’s date of hire and a copy of Grant’s time cards. The complainant, however, contends that no other records to support

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that Grant was hired as a part time employee were provided to him and it is unclear from the record whether any records not yet provided to the complainant exist.

19. Consequently, it is concluded that to the extent that all records responsive to the July 1, 1996 request for records reflecting that Grant was paid as a part time employee were provided to the complainant, the respondent mayor did not violate 1-15(a) and 1-19(a), G.S. However, to the extent that other records exist that are responsive to the complainant’s request, and such records were not provided to the complainant, the respondent mayor violated 1-15(a) and 1-19(a), G.S.

20. With respect to the complainant’s request as described in paragraph 6 of the findings, above, it is found that the respondent administrative assistant provided the complainant with a copy of the Merit System on July 3, 1996.

21. The complainant contends that the respondent administrative assistant’s July 3, 1996 response was not prompt because he had previously requested a copy of the Merit System on June 13, 1996 at the meeting.

22. Section 1-15(a), G.S., in relevant part, provides that "[A]ny person applying in writing shall receive, promptly upon request, a…copy of any public record."

23. It is found that the complainant failed to prove that he had applied in writing on June 13, 1996 for a copy of the Merit System. It is found however, that during the meeting on June 13, 1996, the respondent administrative assistant and the complainant engaged in a discussion about the Merit System, and the respondent administrative assistant, at that time, told the complainant that she would provide him with a copy of the Merit System.

24. It is concluded however, that the July 3, 1996 response, in light of the July 2, 1996 request for a copy of the Merit System, was prompt within the meaning of 1-15(a) and 1-19(a), G.S., and therefore, the respondent administrative assistant did not violate those provisions of the FOI Act.

25. It is found that the Board of Aldermen has an existing policy of not charging aldermen for copies of public records requested in their capacity as aldermen, and that the complainant has in the past distinguished his records requests in his capacity as an alderman, in which case the respondents did not charge him the FOI fee permitted in 1-15(a), G.S.

26. It is concluded that notwithstanding any right the complainant may have in his capacity as an alderman to access public records, the complainant has the same FOI right to inspect and to receive a copy of public records, as does any other person. Further,

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in order to exercise his FOI right, nothing in the FOI Act requires that the complainant expressly assert the statutory basis for his right. However, pursuant to 1-15(a) and 1-15(c), G.S., the respondents, when providing copies of public records, may charge the complainant the permitted fee, and request prepayment of any fee estimated to be ten dollars or more.

27. With respect to all of the issues raised in this complaint, it is also found that the apparent hostility and intolerance between the complainant and the respondents has led to a complete breakdown in their communication, dialogue and willingness to cooperate with each other.

28. It is concluded that the imposition of civil penalties is not appropriate in this case.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. In light of the conclusion reached in the second sentence of paragraph 19 of the findings, above, the respondent mayor shall forthwith, arrange to have the appropriate records searched to ascertain whether any additional records, not yet provided to the complainant and responsive to the complainant’s request for records reflecting that Grant was paid as a part time employee, exist. If no additional records exist, the respondent mayor shall forthwith so indicate to the complainant in writing. If additional records exist, the respondent mayor shall forthwith arrange to provide the complainant with a copy of such records.

2. In the interest of the public whom they serve, the Commission encourages the complainant, the respondents and the Board of Aldermen to work toward improving their communication.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 1997.

__________________________
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:

John J. Finn
c/o John P. Basher, Esq.
80 Ferry Boulevard, Suite 216
Stratford, CT 06484

Mark A. Lauretti, Mayor, City of Shelton; and Sandra M. Nesteriak, Administrative Assistant, City of Shelton
c/o Ramon S. Sous, Esq.
Assistant Corporation Counsel
159 Main Street
Seymour, CT 06483

c/o William R. Connon, Esq.
Sullivan, Schoen, Campane & Connon
646 Prospect Avenue
Hartford, CT 06105

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-232/FD/eal/06301997