FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Michael Winkler and the

Administrative and Residual

Employees Union,

 
  Complainants  
  against   Docket # FIC 2004-208

Secretary, State of Connecticut,

Office of Policy and Management,

 
  Respondent April 27, 2005
       

 

            The above-captioned matter was heard as a contested case on August 9, 2004, at which time the complainants appeared, and presented testimony, exhibits and argument on the complaint.  The respondent did not appear at such hearing.  On motion of the respondent, the hearing was reopened, and a second hearing was conducted on January 21, 2005.  At such second hearing, the respondent appeared, and presented testimony, exhibits and argument on the complaint.  The complainants did not appear at such second hearing.  Subsequent to the second hearing, the complainants moved for a second reopening of this matter.  Such motion is hereby denied. 

 

            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.  The State of Connecticut, Office of Policy and Management, shall hereinafter be referenced as “OPM.”

 

3.   It is found that, by letter dated April 6, 2004, the complainants requested that the respondent provide them with “copies of the plans which OPM budget analysts shared with each agency on or about November 20, 2002.” 

 

4.  By letter of complaint dated April 29, 2004, and filed May 3, 2004, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by failing to comply with their April 6, 2004 request. 

 

5.   Section 1-210(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…receive a copy of such records in accordance with section 1-212. 

 

6.  Section 1-212(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 request described in paragraph 3, above, was one of several submitted by the complainants to the respondent in 2003 and 2004, by which the complainants were seeking copies of records relative to OPM plans for layoffs, and that the parties were engaged in multiple communications regarding the provision of such records at the time of the request at issue herein. 

 

8.  It is found that, on November 20, 2002, Frank Miano, a former employee of OPM, sent instructions by e-mail to OPM budget analysts to telephone agency liaisons and discuss with them draft plans for layoffs.  It is further found that such draft plans were attached to such e-mails and that they are the records at issue in this matter, which shall hereinafter be referenced as “the requested records.”

 

9.  It is further found that the respondent sought to minimize distribution of the requested records in November 2002, and thus instructed OPM budget analysts to communicate orally with state agencies, rather than provide them with copies of such records. 

 

10.   It is found that the requested records were not static documents and were repeatedly changed in electronic form after November 2002, as OPM and state agencies grappled with various options during the layoff crisis of 2003.  Based upon the evidence presented at the hearings in this matter, it is also found that the respondent cannot recreate or retrieve the requested records electronically.    

 

11.  It is found that the respondent has previously provided the complainants with thousands of pages of records, including later versions of the requested records.   However, it is also found that the respondent has conducted a thorough search for the requested records in their original form, in both paper and electronic format, including a sweep of the e-mails of OPM budget analysts and officials.  It is further found that the respondent does not keep on file or maintain the original requested records, and that he did not keep on file or maintain the original requested records at the time of the request described in paragraph 3, above.   

 

12.  The Commission is troubled by the failure of the respondent to maintain a copy of the requested records.  However, it is concluded that the respondent did not violate the provisions of 1-212(a), G.S., as alleged in the complaint. 

 

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

 

1.  The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 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:

 

Michael Winkler and the

Administrative and Residual

Employees Union

705 North Mountain Road, Suite A211

Newington, CT 06111

 

Secretary, State of Connecticut,

Office of Policy and Management

c/o Gareth D. Bye, Esq. and

Anthony L. Lazzaro, Jr., Esq.

Office of Policy and Management

450 Capitol Avenue

Hartford, CT 06106-1308

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-208FD/paj/4/28/2005