FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Christina Berger,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-314

Chairman, The Kensington Fire District, Borough of Kensington; and The Kensington Fire District, Borough of Kensington,

 

 

Respondents

April 8, 1998

        The above-captioned matter was heard as a contested case on January 7, 1998, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with Docket # FIC1997-337, Christina Berger against Chairman, Kensington Fire District Commission, Borough of Kensington; and Kensington Fire District Commission, Borough of Kensington.

        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. It is found that, on August 29, 1997, the complainant visited the offices of the respondent district, seeking access to the plans for a proposed sewer project that had been presented at the respondent district’s annual meeting in May, 1997 ("plans"), as well as the minutes of such meeting ("minutes"), and that neither the plans nor the minutes were at such office. It is also found that, in order to inspect the plans, the complainant was referred to the office of an engineer who was under contract to the Kensington Fire District ("engineer"), but who was unavailable at such time. It is further found that the complainant was referred to the home of the respondent district’s recording secretary for the requested minutes.

        3. It is found that, on September 15, 1997, the complainant again contacted the office of the respondent district regarding access to the plans and was again referred to the office of the engineer. It is further found that on such date the complainant met with the engineer and requested access to the plans. It is found that the complainant was informed that such plans had been discarded. It is further found that the engineer offered to provide the complainant with a copy of the then current version of the plans at no charge and that the complainant ultimately received such copy from the engineer on September 25, 1997.

        4. By letter dated September 16, 1997, the complainant requested that the respondent chairman provide her with a copy of the plans and an opportunity to review the records of the respondent district, including the minutes and other information pertaining to the sewer project described in paragraph 2, above.

        5. By letter dated September 25, 1997 and filed on September 29, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying her access to the records described in paragraph 4, above. The complainant requested that civil penalties be imposed.

        6. It is found that, at the October 20, 1997 meeting of the respondent district, the respondent chairman informed the complainant that her requests for records would be honored, excepting the plans, which had been discarded.

        7. It is found that, on November 24, 1997, the requested minutes were mailed to the complainant. It is further found that at the hearing in this matter, the complainant acknowledged that she is now in receipt of all records which she requested and which are more fully described in paragraph 4, above, with the exception of the plans.

        8. It is found that, at the hearing on this matter, the engineer testified that the plans could be reproduced from his computer and would be made available to the complainant upon her payment of the appropriate fee. It is further found that such information was not made available to the complainant at the meeting described in paragraph 3, above, because of a misunderstanding.

        9. Section 1-18a(5), G.S., (prior to October 1, 1997, 1-18a(d), G.S.), in relevant part defines "public records" to mean:

…any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

        10. It is found that the requested records, including the plans, are public records within the meaning of 1-18a(5) and 1-19(a), G.S.

        11. Section 1-19(a), G.S., in relevant part states:

[e]xcept 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…Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located…. [Emphasis added.]

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

        13. Section 1-15(b), G.S., in relevant part provides that:

[t]he fee for any copy provided in accordance with subsection (a) of section 1-19a shall not exceed the cost thereof to the public agency. In determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only: (1) An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection; (2) an amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested; (3) the actual cost of the storage devices or media provided to the person making the request in complying with such request; and (4) the computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services….

        14. It is found that respondent district does not employ an administrative staff and that it maintains its public records in an office separate from the office visited by the complainant as described in paragraph 2, above. It is also found that such separate office is locked during most business hours. It is further found that, as a consequence of such arrangement, the public records of the respondent district are only available for public inspection by appointment made through the respondent chairman.

        15. It is found that the plans became a public record when presented at the meeting of the respondent district as more fully described in paragraph 2, above. It is further found that such public record is maintained by the engineer at his private office and is only available for public inspection by appointment made through the respondent chairman.

        16. It is found that the respondents’ records maintained as described in paragraphs 14 and 15, above, are neither kept and maintained at a "regular office or place of business", nor are they kept or maintained in an "accessible place," within the meaning of 1-19(a), G.S.

        17. It is therefore concluded that by failing to properly store all of their records in accordance with the FOI Act, the respondents violated 1-19(a), G.S.

        18. It is also concluded that by requiring the complainant to make an appointment prior to inspecting their public records, the respondents violated the provisions of 1-19(a), G.S., in that they imposed conditions precedent to the inspection of public records.

        19. It is also concluded that the respondents violated the promptness provisions of 1-19(a), G.S., by failing to provide the complainant with copies of the minutes described in paragraph 4, above, within a reasonable time frame.

        20. It is also found that the respondents did not violate the provisions of 1-19(a), G.S., by failing to provide the complainant with a copy of the plans, since such failure arose from a misunderstanding at the meeting described in paragraph 3, above, and since the respondents have agreed to reproduce the plans upon the complainant’s payment of the fee allowable under the provisions of 1-15(b), G.S.

        21. The Commission declines to impose a civil penalty under the facts and circumstances of this case.

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

        1. The respondents shall immediately establish a regular office or place of business where their records are accessible to the public during regular office or business hours, or, in the alternative, the respondents shall immediately turn over all such records to the Berlin town clerk’s office in accordance with the provisions of 1-19(a), G.S., and shall advise the Commission in writing when the chosen alternative has been accomplished.

        2. Henceforth, the respondents shall strictly comply with all of the requirements of 1-19(a), G.S.

        3. The respondents shall post a copy of the final decision in this matter in the Berlin town hall in a public place for a period of thirty days.

        Approved by Order of the Freedom of Information Commission at its regular meeting of April 8, 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:
Christina Berger
858 Chamberlain Highway
P.O. Box 7283
Kensington, CT 06037

Chairman, The Kensington Fire District Commission, Borough of Kensington; and The Kensington Fire District Commission, Borough of Kensington
c/o Robert Argazzi
460 New Britain Road
P.O. Box 2
Kensington, CT 06037

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-314/FD/tcg/04171998