FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-612
September 10, 1997

Robert C. Hunt, Complainant
against
Jane Glover, Commissioner, State of Connecticut, Commission on Human Rights and Opportunities, Respondent

The above-captioned matter was heard as a contested case on June 16, 1997, 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 in her capacity as a member of the Commission on Human Rights and Opportunities ("CHRO") is a public agency within the meaning of Section 1-18a(a), G.S.

2. By letters dated November 12 and December 6, 1996, the complainant requested that the respondent furnish for inspection and copying all records in the respondent’s possession relating to the case, CHRO v. Town of Avon, et al., case number 9415041 ("requested records").

3. By letter dated November 29, 1996, Philip Murphy, Counsel to the CHRO, responded that that the respondent recalled receiving the requested records, but that she no longer had these records in her possession, and that the only documents that she had "a present recollection" of receiving were those related to the Town of Avon’s Petition for a Declaratory Ruling.

4. By letter dated December 24, 1996, and filed on December 30, 1996, the complainant appealed to the Freedom of Information ("FOI") Commission, alleging that the respondent violated the FOI Act by failing to respond or comply adequately with the requests to inspect and copy the requested records, and requesting that sanctions be imposed on the respondent.

5. At the hearing, the complainant contended that the respondent did not perform a diligent search for the requested records and that the respondent should be admonished to comply with the records retention statutes.

6. At the hearing, the respondent stated through other witnesses and by affidavit that she generally followed a practice of leaving records on the table at the CHRO offices following meetings, and again, that she recalled receiving the requested records, but that she no longer had these records in her possession.

7. Section 1-19(a), G.S., provides in pertinent part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.

8. Section 1-15(a), G.S., in turn, provides in pertinent part that:

(a)ny person applying in writing shall receive, promptly, upon request, a plain or certified copy of any public record.

9. It is found that the respondent did not appear in person at the hearing and that her affidavit entered into evidence did not state or detail the performance of a diligent search for the requested records. The testimony of CHRO staff members concerning what records were furnished to the respondent was indirect, and therefore, insufficient to make findings concerning the question of what requested records are in the respondent’s custody.

10. It is also found that, because the respondent did not appear in person at the hearing, there was insufficient evidence to make findings concerning the overall volume of CHRO records in her custody, an important factor in weighing the degree of effort necessary to perform a diligent search (see paragraph 9 in the consolidated case, Docket #FIC 1996-610). As a result, it is found that the respondent failed to prove that she has performed a diligent search for the requested records.

11. Therefore, it is concluded that the respondent violated 1-19(a) and 1-15(a), G.S. by failing to prove that the requested records do not exist and consequently cannot be provided to the complainant.

12. However, it is also found that the imposition of sanctions as requested by the complainant is not warranted based upon the facts of this case.

13. It is also concluded that the Commission lacks jurisdiction to enter an order with respect to compliance with the state’s record retention statutes.

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

1. The respondent shall forthwith undertake a diligent search for the requested records among all of the CHRO records maintained by her. If the requested records are located, the respondent shall forthwith provide a copy to the complainant. If no requested records are found, the respondent shall provide the complainant with an affidavit detailing the scope, duration, and results of the search.

2. The complainant may, of course, pursue any allegations of violations of records retention requirements with the state librarian who has jurisdiction over such matters, including the question of the applicability of records retention schedules to individual public officials as opposed to the offices of state agencies.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 1997.
__________________________
Doris V. Luetjen
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:
Robert C. Hunt
c/o James A. Budinetz
Pepe & Hazard
Goodwin Square
Hartford, CT 06103-4302

Jane Glover, Commissioner, State of Connecticut, Commission on Human Rights and Opportunities
c/o Raymond P. Pech
CHRO
21 Grand Street
Hartford, CT 06106

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1996-612/tcg/09101997