OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
|Docket #FIC 2001-287|
|November 28, 2001|
The above-captioned matter was scheduled to be heard as a contested
case on July 20, 2001, at which time the complainant appeared, but the
respondents did not. Counsel for
the respondents was contacted at that time by telephone and participated in a
discussion with the complainant and the undersigned hearing officer by means
of a telephone loud speaker. As a
result of that discussion, the hearing into this matter was convened and the
complainant agreed that this matter may be dismissed based upon the promise by
the respondents that they would mail to him on that date, by overnight
courier, a copy of the records he had requested and had not received at the
time of the hearing.
Thereafter, by letter dated July 24, 2001, the complainant informed the
undersigned hearing officer that the complainants had not fully complied with
the agreement described above. As
a result, the undersigned hearing officer caused to be issued a “Notice of
Reopening of Hearing and Civil Penalty Hearing and Order to Show Cause,”
wherein Anne M. Cournoyer of the Department of Correction was added as a party
respondent and notice was provided that the Commission will reopen the hearing
into the above-captioned matter and will also conduct a hearing concerning the
imposition of a civil penalty against Ms. Cournoyer pursuant to §1-206(b)(2),
The reopened hearing was held on September 5, 2001, 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.
2. By letters dated February 13, 2001 and March 28, 2001, the complainant requested records of the respondent department concerning investigations into “swap violations” case numbers II-00-33 and C-3-00-009 involving the complainant.
3. It is found that during the period between the complainant’s initial requests and the date this matter was first scheduled for a hearing, further correspondence between the complainant and the respondent Cournoyer occurred, in which the complainant refined his requests, and in which the respondent Cournoyer, who is charged with responding to Freedom of Information (“FOI”) Act requests, responded by stating that the requested records were not yet available.
4. It is also found that in responding to the complainant’s requests, the respondent Cournoyer stated in a letter to the complainant dated April 4, 2001 that the subject investigation had been closed and, for the first time informed the complainant that the Attorney General’s office had subpoenaed the records requested by the complainant. She further stated that the respondent department would await direction from the Attorney General’s office with respect to dissemination of the requested records and that the complainant would be notified accordingly. By letter dated June 13, 2001, the respondent Cournoyer finally disclosed to the complainant that the Attorney General’s office had authorized release of the requested records.
5. Having failed to receive any of the records he had requested, the complainant appealed to this Commission by letter dated June 3, 2001, and filed with the Commission on June 6, 2001.
6. Section 1-210(a), G.S., provides in material part:
“Except 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.”
7. Section 1-212(a), G.S., in turn provides “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
8. The respondent Cournoyer testified that the respondent department received over 500 requests for records during the previous fiscal year and therefore the respondents argued that the workload imposed by this volume of requests necessarily means that their delayed attempted compliance in this case was reasonable under the applicable promptness standards set forth in §§1-210(a) and 1-212(a), G.S.
9. It is found, however, that the respondents did not meaningfully attempt to provide the complainant with any of the records he had requested until July 20, 2001, the date scheduled for the first hearing in this matter.
10. It is also found that the respondent Cournoyer, at least in this case, was only prompted to comply with the complainant’s requests after he had filed a complaint with the Commission. Indeed, it is found that in this case, the respondent Cournoyer has continued, what appears to be, a policy of mere pro forma responses to FOI requests and of serious pursuit of compliance with them only if pressured to do so, as when a complaint to the Commission has been initiated.
11. It is concluded therefore that the respondents have clearly violated the promptness provisions of §§1-210(a) and 1-212(a), G.S., in responding to the complainant’s requests in this case.
12. Section 1-206(b)(2), G.S., states in pertinent part:
“In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.”
13. It is found that the respondent Cournoyer was directly responsible for the violation set forth in paragraph 11, above, and that there were no reasonable grounds for such violation in this case.
14. It is also found that the respondents violated their explicit agreement, made before, and represented by counsel to, the undersigned hearing officer on the record in this case, in which they agreed to mail to the complainant on July 20, 2001, by overnight courier, a copy of the records he had requested and had not received at the time of the hearing on that date.
15. At the hearing in this matter on September 5, 2001, the complainant alleged that he had not yet received seven categories of records he had previously requested.
16. The respondent Cournoyer testified, and it is found, that as of September 5, 2001, the complainant has been provided with all of the records he has requested that actually existed, with the exception of two categories of records.
17. The first category of records that has not been provided consists of certain personnel rosters and logs used in case number II-00-33. Notwithstanding their previous agreement to provide the complainant with all requested records, the respondents now maintain that these records are exempt from disclosure pursuant to §1-210(b)(18)(G), G.S.
18. Section 1-210(b)(18)(G), G.S., in pertinent part, exempts from public disclosure:
“Records, the disclosure of which the Commissioner of Correction . . . has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction. . . . Such records shall include, but are not limited to:
(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities. . . .”
19. It is found that the first category of records not provided to the complainant falls within the §1-210(b)(18)(b)(G), G.S., exemption to disclosure and therefore, notwithstanding the respondents’ previous agreement to provide these records to the complainant, the Commission lacks jurisdiction to order their disclosure.
20. The second category of records that has not been provided to the complainant consists of tape recordings taken in the course of the respondent department’s investigation into case numbers II-00-33 and C-3-00-009.
21. It is found that notwithstanding the respondents’ previous agreement to provide these records to the complainant, the respondent Cournoyer informed the complainant by letter dated July 24, 2001 that providing such recordings might require redaction, that consequently they would have to be transcribed by a stenographer and that they would only be provided if the complainant paid for the transcription.
22. It is also found, however, that the respondents failed to prove by any evidence whatsoever either that the subject tape recordings contained any information entitled to redaction or that a transcription (rather than merely providing a duplicate copy of the tape recordings themselves) was required to protect any confidential information. Indeed, it is found that the respondent Cournoyer had not even reviewed, or had anyone else review,
the tape recordings in question as of the time of the September 5, 2001 hearing in this matter.
23. It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., when they failed to promptly provide the complainant with a copy of the subject tape recordings and by insisting that the complainant pay for the cost of a transcription of such recordings as a condition precedent to the provision of such tape recordings.
24. It is also found that the respondent Cournoyer was directly responsible for the violations set forth in paragraph 23, above, and that there were no reasonable grounds for such violations in 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 forthwith provide free of charge to the complainant, at their option, either a duplicate copy of the tape recordings identified in paragraph 20 of the findings, above, or a copy of a transcription thereof.
2. The respondent Cournoyer shall forthwith remit to the Commission a civil penalty in the amount of two hundred and fifty ($250) dollars.
3. Although the Commission takes no action against the respondents for violating the explicit terms of the agreement with the complainant in this case, which agreement was made on the record by the respondent Cournoyer, and represented to the Commission through its hearing officer by respondents’ counsel, the Commission is compelled to note the fact this violation did occur. The Commission knows that the respondents’ counsel is an honorable person and believes that the respondent Cournoyer to be the same. Needless to say, the Commission expects that there will be no repetition of this kind of conduct in the future.
4. This case has also
revealed a significant deficiency in the processes and procedures used by the
respondents to comply with requests under the FOI Act.
The respondent Cournoyer, who has been assigned the task of responding
to FOI requests, appears to be a well-intentioned individual who has become
overwhelmed by the task of responding to such requests in a timely fashion.
Consequently, she seems to have adopted a dilatory approach in which
she aggressively follows up on requests for information only when a complaint
to the Commission has actually been filed.
Such an approach, and the attitude behind it, is simply not an
acceptable one, but rather one guaranteed to result in unsatisfactory results
for the respondents in future cases. The
Commission therefore urges the respondent Cournoyer and her counsel in this
case to meet with the Commission’s staff to discuss these problems so that
acceptable solutions to the legitimate issues facing the respondents, that
also meet the requirements of the FOI Act, may be constructed.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 28, 2001.
Petrea A. Jones
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:
C. James Sullivan III
P.O. Box 3013
Anne M. Cournoyer,
Connecticut, Department of
c/o Assistant Attorney General Henri Alexandre
110 Sherman Street
Hartford, CT 06105
Petrea A. Jones
Acting Clerk of the Commission