FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Jeannine Gagnon,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-322

Chairman, Housatonic Valley Tourism Commission; and the Housatonic Valley Tourism Commission,

 

 

Respondents

March 25, 1998

        The above-captioned matter was heard as a contested case on January 9, 1998, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The case-caption has been amended to reflect the proper titles of the respondents. For purposes of hearing, this case was consolidated with Docket #FIC1997-306, Jeannine Gagnon v. Director, Housatonic Valley Tourism Commission and Housatonic Valley Tourism Commission.

        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(1), G.S., (prior to October 1, 1997, 1-18a(a), G.S.).

        2. By letter dated September 24, 1997, the complainant requested copies of the following, all of which pertain to the complainant’s mother, who formerly held the position of director of the respondent commission:

a. The vote to terminate Margaret Gagnon as of ???? date;

b. The vote to pay Margaret Gagnon’s medical insurance through the end of February;

c. All of the documents instructing the insurance company to terminate Margaret Gagnon’s insurance;

d. A copy of the so-called "COBRA" letter sent to Margaret Gagnon stating the "qualifying event" that ended her coverage;

e. A copy of the respondent commission’s vote to not pay Margaret Gagnon’s vacation pay in accordance with company policy; or

f. A copy of the respondent commission’s policy manual showing that its vacation policy was changed prior to Margaret Gagnon’s termination;

g. A copy of the respondent commission’s budgets for fiscal years 95-96, 96-97, 97-98;

h. backup for all legal bills from calendar years 1995, 1996 and 1997;

i. A copy of the vote to pay legal expenses for Les Pinter and Violet Mattone;

j. All copies of the legal bills for Les Pinter and Violet Mattone;

k. All copies of the detail for David Cammner’s Bills or payments to HRP; and

l. A copy of the respondent commission’s health insurance policy showing eligibility requirements and employee’s cost share.

        3. By letter dated and filed on October 3, 1997, the complainant appealed to the Commission alleging that the respondents had violated the Freedom of Information ("FOI") Act by failing to comply with her September 24, 1997 records request.

        4. It is found that to the extent records exist that are responsive to the complainant’s request, such records are public records within the meaning of 1-18a(4) (prior to October 1, 1997, 1-18a(d), G.S.) and 1-19(a), G.S.

        5. Section 1-19(a), G.S., provides in relevant part:

"Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…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."

        6. In turn, 1-15(a), G.S., provides in relevant part, that "any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

        7. By letter dated December 3, 1997, the respondents responded to the complainant’s request, advised her that certain records were available for inspection, some were exempt from disclosure, some records were available to be picked up, certain records were not yet available because they needed to be redacted prior to disclosure and that the complainant would be charged fifty cents per page for copies of records.

        8. Specifically, with respect to the complainant’s requests concerning certain votes of the respondent commission, described in paragraph 2a., 2b., 2e., and 2i., the respondents advised the complainant that they were unaware of when or if such votes occurred, but informed the complainant that she could make arrangements to come to the respondent commission’s office and inspect the minutes of commission meetings.

        9. The complainant maintains that she did in fact go to the respondent commission’s office on several occasions to inspect the minutes and could not find any of the requested votes contained in the minutes.

        10. It is found that the FOI Act does not require public agencies to research their records but only requires public agencies to open their records for public inspection. And the Commission lacks jurisdiction to consider whether records of votes exist or whether such votes actually took place.

        11. It is concluded therefore, that with respect to the complainant’s requests described in paragraph 2a., 2b., 2e., and 2i., the respondents did not deny the complainant access to public records in violation of the FOI Act.

        12. With respect to the complainant’s requests described in paragraph 2c. and 2d., above, the respondents first claimed in their December 3, 1997 response that such records were exempt from disclosure because they were contained in the complainant’s mother’s personnel file and that they would need authorization from the complainant’s mother in order to release the records. Thereafter, the respondents sought and obtained the complainant’s mother’s permission to disclose the subject records on January 6, 1998. Then however, at the hearing on this matter, the respondents represented that no records existed responsive to the request at 2c., above, because they believed any instructions to the insurance company were done orally. With respect to 2d., the respondents represented that the respondent commission is not subject to "COBRA" and that the only record they had was an August 15, 1996 letter, which the complainant testified was not the letter she was seeking.

        13. Based upon the findings in paragraph 12, above, the Commission cannot determine whether the respondents do or do not maintain records responsive to the items requested in paragraph 2c. and 2d., above.

        14. With respect to the complainant’s requests described in paragraph 2f., above, for the respondent commission’s policy manual, the respondents mailed the complainant a copy of its current manual sometime prior to the hearing in this matter. However, the complainant claims that she was seeking a copy of the old manual or policy rather than the current manual. The respondents represented at the hearing on this matter, that they had thought they were being responsive to the complainant’s request when they sent her the current manual, but would now forward the complainant a copy of what is understood by the respondents to be a manual delineated as the "Policy and Procedure Manual - Housatonic Valley Tourism Commission".

        15. With respect to the complainant’s requests described in paragraph 2g., above, for certain budget documents, the complainant stated that she had received the responsive records, although not until sometime shortly before the hearing in this matter.

        16. With respect to the complainant’s requests described in paragraph 2h. and 2j., above, for copies of legal bills and backup, it is found that attorneys for the respondents attempted to fax redacted copies of their legal bills to the complainant on the evening before the hearing in this matter, but the complainant stopped the transmission because she was seeking the respondent commission’s records showing payment of the legal bills. The respondents represented that now that they understood the complainant’s request, they would provide her with copies of such bills.

        17. With respect to the complainant’s request described in paragraph 2k., above, for Mr. Cammner’s bills, the complainant indicated that she had picked up the subject records sometime prior to the hearing on this matter, but that they were not complete. The respondents represented that they believed that the records were complete but would check to see whether any had not been included with those provided to the complainant.

        18. With respect to the complainant’s requests described in paragraph 2l., above, for a health insurance policy, it is found that sometime prior to the hearing on this matter, the respondents provided the complainant with a copy of the actual health insurance policy. However, the complainant stated that she was looking for the respondent commission’s internal policy concerning eligibility requirements and the respondents represented that now that they understood the request, they would provide here with a copy of the internal policy.

        19. The respondents acknowledged their delay in responding to the complainants’ request at the hearing on this matter, but claimed that the delay was due to some confusion concerning what records the complainant was seeking. The respondents also claimed that since there is ongoing litigation between the complainant’s mother and the respondents, the respondents felt that the complainant should have utilized the discovery process to obtain records.

        20. It is found however, that although several of the complainant’s requests were not entirely clear, others were and those that were not could have been clarified through dialogue with the complainant; further, the respondents claims concerning ongoing litigation and discovery, do not constitute exemptions to disclosure under the FOI Act or a basis for the delay that occurred in this case.

        21. It is concluded therefore, based upon all of the facts and circumstances of this case, that the respondents violated the provisions of 1-19(a) and 1-15(a), G.S., by failing to promptly comply with the complainant’s September request.

        22. The Commission declines to consider the imposition of civil penalties in this case, as requested by the complainant at the hearing on this matter.

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

        1. The respondents shall forthwith provide the complainant with copies of those records not yet provided to the complainant, as described in paragraphs 14, 16 and 18 of the findings, above, free of charge.

        2. The respondents shall also determine whether there are any additional bills that have not yet been provided to the complainant, as described in paragraph 17, above, and if additional records are located, the respondents shall forthwith provide copies of such records to the complainant, free of charge.

        3. The respondents shall forthwith search Margaret Gagnon’s personnel file to determine whether any records exist responsive to the complainant’s request described in paragraph 2c. and 2d., above. If the respondents locate any responsive records, the respondents shall forthwith provide the complainants with copies of same, free of charge. If no records are located, the respondent chairman shall prepare an affidavit attesting to the fact that a diligent search of the respondent commission’s records has been conducted and that no records exist responsive to the complainants requests.

        4. Henceforth the respondents shall strictly comply with the disclosure and promptness requirements set forth in 1-19(a) and 1-15(a), G.S.

        Approved by Order of the Freedom of Information Commission at its regular meeting of March 25, 1998.

_________________________
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:
Jeannine Gagnon
18 Tarryvile Lake Road
Danbury, CT 06810

Director, Housatonic Valley Tourism Commission; and the Housatonic Valley Tourism Commission
c/o Atty. Stephanie Lane
Cummings & Lockwood
CityPlace I
Hartford, CT 06103-3495

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-322/FD/tcg/03271998