In the Matter of a Complaint by


Diane Sivo,







Docket #FIC 1999-260

Comptroller, Town of Brookfield;
and Town of Brookfield,




January 26, 2000






The above-captioned matter was heard as a contested case on November 1, 1999, at which time the complainant 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(1), G.S. [formerly §1-18a(1), G.S.].


2. Between December 1998 and late January 1999 the complainant’s attorney and the respondents exchanged a series of correspondence concerning certain requests by the complainant for attorney bills submitted to the respondent town.  This exchange apparently ended when an Attorney Bennett responded to the complainant’s attorney that he needed to identify in what capacity he was requesting such information (e.g. taxpayer, community activist or attorney) and provide a more specific statement as to what he was interested in obtaining.


3.  Thereafter, by letter dated April 27, 1999 to the respondent comptroller, the complainant requested copies of:


a.       “any and all [r]etainer [a]greements, or memorandum of understanding concerning scope of work, fees, methods of billing for the period of time from January 1, 1995 to the present, by and between the Town of Brookfield and any attorney, counselor-at-law, whether individual or a firm;” and


b.   “any bills received by you, any member of your office or any other person or entity within the Town of Brookfield that would forward the same to you for approval or payment … , for the period of time from January 1, 1995 to the present.”


4.  By letter dated May 3, 1999, Attorney Bennett responded on behalf of the respondents, to the complainant’s April 27, 1999 request and advised the complainant that the Freedom of Information  (“FOI”) Act excluded all “records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”  Attorney Bennett then informed the complainant that since three civil actions involving Jason Sivo and the respondent town were pending, her request for information concerning such matters could not be accommodated.  Attorney Bennett also asked the complainant whether she wanted to review retainer agreements and bills concerning “non-exempt” matters.


5.  By letter dated June 2, 1999 and filed on June 3, 1999, the complainant appealed to this Commission alleging that the respondents violated the FOI Act by failing to provide the requested 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 or to receive  a copy of such records in accordance with the provisions of section 1-212.


 7.  Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”


8.  It is found that the complainant was specifically interested in obtaining records concerning the retention of, and any payments made by the respondent town to, Attorney Bennett, who was apparently authorized by the respondents to attempt to collect on delinquent personal property accounts in the respondent town.


9.   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 §1-210(a), G.S. [formerly §1-19(a), G.S.]. 


10.  Subsequent to the appeal in this case, by letter dated August 9, 1999, an Attorney Mix responded to the complainant, on behalf of the respondents, that the April 27, 1999 request had not been complied with because no records existed at the time of the request that were responsive to such request.  Attorney Mix advised however, that an accounting statement had been prepared by Attorney Bennett and submitted to the respondent town on August 5, 1999, which record he enclosed.


11.  After further communication between the complainant’s attorney and Attorney Mix, Attorney Mix informed the complainant, in a letter dated October 5, 1999, that upon further review of the respondent town’s records, two additional records had been located:  a February 20, 1998 memorandum from the respondent comptroller to Attorney Bennett concerning the collection of personal property accounts; and an accounting summary dated July 1999.  Attorney Mix enclosed copies of the two additional records with his October 5, 1999 letter.


12.  The respondents maintain, and it is found, that other than the three records described in paragraphs 10 and 11, above, no other records exist that are responsive to the complainant’s request described in paragraph 2, above. 


13.  With respect to the respondents’ provision of the July 1999 accounting summary and the August 5, 1999 accounting statement, it is concluded that the respondents did not violate the promptness provisions of §1-212(a), G.S. [formerly §1-15(a), G.S.], since such records did not exist at the time of the complainant’s April 27, 1999 request.


14.  However, it is further concluded that by failing to locate and provide the complainant with a copy of the February 20, 1998 memorandum described in paragraph 10, above, until October 5, 1999, the respondents violated the promptness provisions of §1-212(a), G.S. [formerly §1-15(a), G.S.].



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 promptness provisions of §1-212(a), G.S. [formerly §1-15(a), G.S.].


2.  The Commission notes that the facts herein disclose that the respondents, through their attorney, denied the complainant’s records requests prior to determining whether records indeed existed.  Such a course of conduct clearly is not in keeping with the spirit and intent of the FOI Act and should be avoided in the future. The Commission also notes that given what transpired before and after the initiation of this appeal, this appeal could have been resolved without the need for the state to expend valuable resources.  In this regard, the Commission notes that the parties twice requested and were granted hearing postponements on the grounds that there was the likelihood of a settlement.




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

January 26, 2000.




Melanie R. Balfour

Acting Clerk of the Commission






Diane Sivo

c/o Atty. David S. Grossman

304 Federal Road

Brookfield, CT  06804


Comptroller, Town of Brookfield; and Town of Brookfield

c/o Atty. Lawrence J. Mix

57 North Street, Suite 214

Danbury, CT  06810
















Melanie R. Balfour

Acting Clerk of the Commission