FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Jonathan F. Kellogg and the
Republican-American,
Complainants
against Docket #FIC 1998-341
Assistant Commissioner, State of Connecticut,
Department of Environmental Protection,
Division of Air Waste and Water Programs; and
State of Connecticut, Department of Environmental
Protection, Division of Air Waste and Water Programs,
Respondents June 30, 1999

        The above-captioned matter was heard as a contested case on January 19, 1999, at which time the complainants and the respondents appeared, stipulated to certain facts 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 respondents are public agencies within the meaning of 1-200(a), G.S. [formerly 1-18a(a), G.S.].

        2. It is found that on or about October 28, 1998, the complainants made an oral request, through Mr. Lyons, a staff reporter, for access to inspect all of the respondents’ records related to the cleanup of the former Scovill Brass Mill in Waterbury which were compiled pursuant to a federal grand jury subpoena. On or about October 30, 1998, the complainants made the same request in writing.

        3. It is found that the requested records consisted of 15 or 16 file boxes located in an office of the respondent department and were compiled pursuant to a subpoena which commanded the custodian of records of the respondent department to appear and testify before the grand jury and to bring all records and files of the respondent department relating to all work performed at and studies conducted for the Brass Center Mall site. It is found that the subpoena also provided that in lieu of personal appearance before the grand jury, the records may simply be provided to a certain special agent named in the subpoena.

        4. By letter dated October 30, 1998, the respondents responded to the complainants’ requests informing them that the records had not been reviewed for their content, that there may be records which would be exempt from disclosure and that a review must be conducted before the records would be released. The respondents also informed the complainants that the records were compiled pursuant to a subpoena, that the respondents could and would not jeopardize their compliance with that subpoena and that access would not be provided until the assigned federal agent, at the minimum, had an opportunity to inventory the documents. The respondents further informed the complainants that the respondents had been asked not to disclose the information by the U.S. Attorney’s office but would work with the assigned federal agent to identify those records that could be made available and would provide access to those that did not fall within any Freedom of Information ("FOI") Act exemption. Finally, the respondents informed the complainants that a reasonable time was required to review the records and that although their request was not denied, it was subject to the respondents’ other legal obligations.

        5. By letter dated and filed on November 2, 1998, the complainants appealed to this Commission alleging that the respondents violated the FOI Act by denying their request for access to inspect the records described in paragraph 3, above.

        6. Section 1-210(a), G.S. [formerly 1-19(a), G.S.], provides in relevant part that:

[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 . . .

        7. It is found that the records described in paragraph 3, above, are public records within the meaning of 1-210(a), G.S. [formerly 1-19(a), G.S.].

        8. At the hearing in this matter, the respondents argued that they never denied the complainants’ requests and that they received a letter and telephone communication from the U.S. Attorney’s office which requested that the respondents withhold the records and the subpoena from disclosure. The respondents further argued that they were trying to balance their obligation to comply with both the FOI Act and the grand jury subpoena and that the deference given to the federal government was appropriate.

        9. It is found that the complainants spoke with several members of the respondent department regarding their requests, one of whom was the assistant counsel to the respondent department who asked the complainants to narrow their request or identify specific records they wanted to review in an effort to expedite compliance with respect to at least some of the records, otherwise, it would be weeks before they would have access to the records.

        10. It is found that the complainants declined to narrow the scope of their requests and because they did not know what records there were, could not request specific records.

        11. It is found that on or about October 30, 1998, the respondent assistant commissioner, another member of the respondent department with whom the complainants spoke, gave instructions to staff members to begin a review of the requested records starting with those identified as the "red files," to determine which of those records could be disclosed to the complainants.

        12. It is found that on November 5, 1998, the federal government took custody of the records and removed them from the offices of the respondent department.

        13. It is found that at some time after November 5, 1998 and before the date of this hearing, the respondents located and collected from staff members throughout the respondent department copies of some of the records described in paragraph 3, above, which amounted to one file folder of records and provided them to the complainants.

        14. It is found that the respondent department maintains no other records responsive to the complainants’ requests.

        15. It is found that, pursuant to the subpoena, the respondents expected the records to be delivered to the assigned federal agent on or about October 27, 1998 and that at the time of the complainants’ requests, the respondents had no expectation that they would have any opportunity to conduct the extensive review it claimed needed to be done before the complainant could be provided with access.

        16. It is found that the respondents do not know if the review of the red file was ever conducted, that the assistant counselor to the respondent department did not review any of the records to determine if any were exempt from disclosure, and that the respondents did not make duplicates of the records described in paragraph 3, above.

        17. It is found that the respondents were in frequent contact with the U.S. Attorney’s office regarding the complainants’ requests. Respondents’ personnel addressed with the U.S. Attorney’s office the obligations under the FOI request. The Assistant U.S. Attorney stated to respondents’ personnel that the grand jury subpoena entitled the federal government to take physical custody of the records and addressed the logistics of doing so.

        18. It is also found that there is nothing in the subpoena which precluded the respondents from providing access to the requested records nor did the respondents provide any statutory authority which precluded them from making duplicates of the requested records, conducting their review and providing access to the duplicate non-exempt records.

        19. It is also found that the letter, dated October 30, 1998, from an Assistant U.S. Attorney, Nora R. Dannehy, requested that the subpoena not be disclosed. In subsequent telephone conversations Ms. Dannehy expressed serious concerns with respect to the possible disclosure of the records.

        20. It is therefore concluded that the respondents denied the complainants’ request for access to review the records described in paragraph 3, above.

        21. It is found that the respondents failed to claim or prove that any exemption within the FOI Act applied to the requested records or that any federal law or state statute required or authorized withholding the requested records.

        22. It is therefore concluded that the respondents violated 1-210(a), G.S. [formerly 1-19(a), G.S.], by failing to provide the complainants with access to inspect the records described in paragraph 3, above, at the time the records were in their custody, or copies thereof.

 

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

        1. Henceforth, the respondents shall strictly comply with the access provisions of 1-210(a), G.S. [formerly 1-19(a), G.S.].

        2. Although the records are no longer in the custody of the respondents and this Commission cannot order the disclosure of those records, this Commission strongly recommends that the respondents forthwith make every effort to obtain copies of the records described in paragraph 3 of the findings, above, from the U.S. Attorney’s office and provide access to those records to the complainants.

 

        Approved by Order of the Freedom of Information Commission at its special meeting of

June 30, 1999.

 

_________________________

Melanie R. Balfour

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:

 

Jonathan F. Kellogg and
the Republican-American
c/o Atty. Thomas Parisot
Secor, Cassidy & McPartland, PC
41 Church Street
Waterbury, CT 06723-2818
 

Assistant Commissioner,
State of Connecticut,
Department of Environmental
Protection, Division of Air Waste
and Water Programs; and State
of Connecticut, Department of
Environmental Protection, Division
of Air Waste and Water Programs
c/o Atty. Robert B. Teitelman
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-341FD/mrb/07071999