FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Martha Lemmon,  
  Complainant  
  against   Docket #FIC 2004-286
East Norwalk Improvement Association,  
  Respondent April 13, 2005
       

 

The above-captioned matter was heard as a contested case on February 2, 2005, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  It is found that by letters dated May 6, 2004, the complainant requested that the respondent provide her with a copy of the following records, in hard copy format, within thirty days:

 

i) order forms, purchase orders and invoices for the acquisition of all books, newspapers, magazines, periodicals, etc. purchased by the …[respondent] for the East Norwalk Library for the year 2003…[including] canceled checks and/or credit card drafts which paid for those books, newspapers, magazines, periodicals, etc.;

 

ii)  the same request as described in i) above, but for the year 2002;

 

iii)  the same request as described in i) above, but for the year 2001;

 

iv)  the respondent and the East Norwalk Library telephone bills and canceled checks which paid those bills for the year 2004;

 

v)  the same request as described in iv) above, but for the year 2003;

 

vi)  the same request as described in iv) above, but for the year 2002;

 

vii)  the same request as described in iv) above, but for the year 2001;

 

viii)  W-2 forms from the respondent reflecting Terry Rooney’s total salary for the years 2001, 2002 and 2003;

 

ix)  the same request as described in i) above, but for the year 2004.           

 

(hereinafter “requested records”).

 

3.  It is found that the respondent never responded to the complainant’s request.[1] 

 

4.  It is found that the complainant renewed her request by letter dated June 16, 2004.

 

5.  Having failed to receive any response or the requested records the complainant, by letter of complaint dated June 23, 2004, and filed June 25, 2004, appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her a copy of the requested records.

 

6.  It is found that the requested records are maintained or kept on file by the respondent.

 

7.  Section 1-210(a), G.S., provides, in relevant 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 … (3) receive a copy of such records in accordance with section 1-212….[Emphasis added].

   8.  Section 1-212(a), G.S., further provides, in relevant part:

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

The fee for any copy provided in accordance with the Freedom of Information Act…by …[municipal]  public agencies … shall not exceed fifty cents per page.  [Emphasis added].

 

 9.  It is concluded that the requested records are public records within the meaning of 1-210(a), G.S.

 

10.   It is found that the respondent made a copy of the requested records available to the complainant sometime during September 2004.

 

11.  It is found that the complainant picked up the records described in paragraph 10, above, on or about November 11, 2004.

 

12.  The complainant contends that some invoices and canceled checks appear to be missing from the records provided to her, but was unable to identify at the hearing in this matter which records are missing.  The complainant also contends that she was provided with duplicate copies of some of the records requested, and charged for such duplicate copies.  The complainant contends further that she was charged fifty cents per page and billed $562.00 for copies of records produced although she is a member of the East Norwalk Taxing District, which already financially supports the respondent.

 

13.  With respect to the requested records as described in paragraph 2, above, it is found that the respondent provided the complainant with all records located after searching its records.  However, it is possible that records other than those provided may exist.

 

14.  With respect to the complainant’s contention that she was billed fifty cents per page, it is found that the respondent is entitled to bill at such rate in accordance with the provisions of 1-212(a), G.S., and therefore did not violate the FOI Act in this regard.

 

15.  It is concluded that the respondent provided the complainant with all records located, however, the production of such records some four months after the complainant’s request was not prompt, within the meaning of 1-210(a), G.S.

 

16.  It is therefore, further concluded that the respondent violated 1-210(a), G.S.,

when it failed to provide the complainant with the requested records promptly.

17.  With respect to the complainant’s December 16, 2004 letter to the respondent informing the respondent that information regarding payments to the respondent’s Executive Director appear to be missing from the records provided to her, it is concluded that while the respondent is required under the FOI Act to produce all existing records responsive to the complainant’s request the respondent is not required to create new documents not yet in existence.[2] 

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

1.  Henceforth, the respondent shall strictly comply with the promptness provision of 1-210(a), G.S.

2.  Forthwith, the complainant shall review the records she was provided, determine which records appear to be missing and so inform the respondent in writing.  The respondent shall then forthwith upon receipt of such communication from the complainant conduct a diligent search of its records to ascertain if additional records responsive to the complainant’s request, as described in paragraph 2 of the findings, above, exist.  Upon concluding its search, the respondent shall forthwith inform the complainant in writing if records are located.  If located, such records shall forthwith be provided to the complainant.  If no additional records are located the respondent shall forthwith so inform the complainant in writing.

3.  With respect to the complainant’s contention that she was billed for duplicate copies, the complainant shall forthwith follow up with the respondent and produce the duplicates for which she was charged.  The respondent upon the return of such duplicates shall refund the complainant any overcharges.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 13, 2005.

 

________________________________

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:

 

Martha Lemmon

52 Van Zant St., Apt. 5

East Norwalk, CT 06855

 

East Norwalk Improvement Association

c/o John A. Milici, Esq.

Bove & Milici

96 East Avenue

Norwalk, CT 06851

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-286FD/paj/4/15/2005

 

                       

                                                                                               

 



[1] At the hearing in this matter counsel for the respondent indicated that he sent a letter to the complainant in response to her request, however, no letter was offered or produced as evidence at the hearing.

[2] In large part, the complainant takes issue with the respondent’s record or bookkeeping practices and appears to be challenging the contents and accuracy of the information provided to her.  While the contents and accuracy of the information provided to the complainant is indeed of concern to this Commission, the respondent’s obligation under the FOI Act is to produce records that it has and not records that the complainant believes the respondent should have.  If records requested are not produced the complainant is free to draw any conclusion, and pursue all relevant issues in the appropriate forums that have jurisdiction and the authority to address such issues.