OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
Robert C. Hunt, Jr.,
Docket #FIC 1999-518
Farrelly, Superintendent of Vital
June 14, 2000
The above-captioned matter was heard as a contested
case on March 15, 2000, 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.].
By letter dated
October 7, 1999, the complainant requested copies of certain records and
documents from the respondent superintendent and having failed to receive a
response, the complainant’s attorney resubmitted his request on October 26,
By letter dated
October 29, 1999, the respondent Freedom of Information officer (hereinafter
“respondent officer”) responded to the complainant acknowledging receipt
of the complainant’s request and stating that because the request required a
legal interpretation, all documents relevant to the complainant’s request
were forwarded to the agency’s legal counsel.
By letter dated
November 8, 1999 and filed on November 9, 1999, the complainant appealed to
this Commission alleging that the respondents violated the Freedom of
Information (“FOI”) Act by failing to promptly respond and comply with his
request. The complainant
requested the imposition of civil penalties.
5. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:
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 receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.”
6. 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 . . . .”
7. It is found that the requested records, to the extent that such records exist, are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].
8. It is found that at the time of the complainant’s request, the complainant and the respondent superintendent were engaged in a dispute regarding the death certificate of the complainant’s wife, which dispute generated correspondence between the parties.
9. It is found that when the respondent superintendent received the complainant’s October 7, 1999 request letter, she assumed that it was correspondence in the nature of a complaint regarding the manner in which she was handling the issues surrounding the death certificate of the complainant’s wife and filed it away without reading the letter in its entirety.
10. It is found that after receiving the second request letter from the complainant’s attorney, as described in paragraph 2, above, the complainant’s letter of October 7, 1999 was retrieved and properly handled as a records request pursuant to the FOI Act by the respondents.
11. It is found that by letter dated December 6, 1999, the respondent officer responded to the complainant’s October 7, 1999 request. However, the response was defective in that the complainant sought “any and all regulations adopted by the Commissioner of Public Health pursuant to 19a-42 C.G.S.” and such records were not provided even though the cover letter to the complainant indicated that they were.
12. It is found that there exist no regulations adopted by the Commissioner of Public Health pursuant to §19a-42, G.S., and that the respondent officer did not make that clear to the complainant until January 5, 2000.
13. It is further found that the respondent officer’s December 6, 1999 response letter indicated that all material that addressed regulations adopted by the Commissioner were enclosed when in fact such records were not enclosed. It is further found that after the complainant questioned the absence of the records, the respondent officer, by letter dated January 5, 2000, informed the complainant that such records were not provided because “draft documents are not disclosable” under the FOI Act.
14. Based upon the findings in paragraphs 9 through 13, above, it is found that the respondents did not promptly respond or comply with the complainant’s October 7, 1999 request.
15. It is therefore concluded that the respondents violated the promptness provisions of §1-210(a), G.S. [formerly §1-19(a), G.S.].
16. The respondents contend that the complainant’s October 7, 1999 request was received during an on-going controversy between the parties over the death certificate of the complainant’s wife and it is not unreasonable that the respondent superintendent would have thought the letter to be one more piece of the larger problem she was already trying to resolve. The respondents also contend that because the respondents were confronted by several attorneys, which included the complainant, it was reasonable for the respondent officer to seek legal counsel before attempting to comply with the complainant’s request. The respondents further contend that every effort was made to provide the complainant with the records they “believed he wanted” and that while the records and responses were not the ones the respondent wanted, they were made in good faith and with no intent to delay or mislead.
17. It is found that the respondent superintendent’s failure to read the complainant’s request letter because she dismissed the request letter as a complaint letter does not mitigate her failure to promptly respond to the complainant’s request but rather demonstrates a careless approach toward a citizen’s request for records.
18. It is further found that while the respondent superintendent and officer may be entitled to seek legal counsel before responding to a request, the fact that they sought counsel makes the deficiency of the responses to the complainant’s request, and the delay in providing a clear response, incredible and unreasonable.
19. It is therefore found that, under the circumstances presented, the aforementioned violation is without reasonable grounds.
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
Christine Farrelly, Superintendent of Vital Records, State of Connecticut,
Department of Public Health, shall forthwith remit to this Commission a civil
penalty in the amount of seventy-five dollars ($75.00) and the respondent
Kevin Sullivan, Freedom of Information Officer, State of Connecticut,
Department of Public Health shall forthwith remit to this Commission a civil
penalty in the amount of seventy-five dollars ($75.00).
respondent shall forthwith comply with the promptness provisions of
§1-210(a), G.S. [formerly §1-19(a), G.S.].
Approved by Order of the Freedom of Information Commission at its regular meeting of
June 14, 2000.
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:
Robert C. Hunt, Jr.
c/o Atty. James A. Budinetz
Pepe & Hazard LLP
225 Asylum Street
Hartford, CT 06130-4302
Farrelly, Superintendent of Vital Records, State of Connecticut, Department of
Public Health; State of Connecticut, Department of Public Health, Office of Vital Records; Kevin Sullivan, Freedom of Information Officer, State of Connecticut, Department of Public Health; and State of Connecticut, Department of Public Health
c/o Atty. Henry A. Salton
and Atty. Richard J. Lynch
Assistant Attorneys General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
Melanie R. Balfour