FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Lee Smith,  
  Complainant  
  against   Docket #FIC 2004-254

Board of Education,

City of Middletown,

 
  Respondent May 25, 2005
       

 

The above-captioned matter was heard as a contested case on November 18, 2004, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter received and filed June 3, 2004, the complainant appealed to the Commission, alleging that the respondent failed to comply with the Commission’s order in docket #FIC 2003-168, Lee Smith v. Assistant Superintendent, Middletown Public Schools.

 

3.  By letter received and filed on September 15, 2004, the complainant requested the imposition of a civil penalty against “the custodian for the extensive delay and the on-going inconvenience.”

 

4.  It is found that, in docket #FIC 2003-168, the Commission issued the following order on April 22, 2004:

 

            The respondent shall forthwith provide the complainant with a copy of the in camera records 2003-168-2 through 2003-168-6.  In providing those records, the respondent may redact the information described in paragraphs 25 through 29, 33 through 36, 40 and 41, and 45 through 47 of the findings, above.  The respondent may also redact the text starting with the first comma in line 17 and ending with the second period in line 18 of in camera record 203-168-6.

 

5.  It is found that the respondent did not comply with the order referenced in paragraph 4, above, until July 9, 2004, 78 days after the issuance of the final decision in docket #FIC 2003-168.  When current counsel for the respondent discovered that the order had not been complied with, he then promptly caused the records to be provided to the complainant, and apologized to the complainant for the delay.

 

6.  It is concluded that the respondent did not comply with the order “forthwith,” as directed.

 

7.  With respect to the civil penalty requested by the complainant, 1-206(b)(2), G.S., provides in relevant part:

 

… 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. 

 

8.  The respondent’s explanation for the delay in complying with the Commission’s order is a failure by  different lawyers at Shipman & Goodwin handling the file to communicate the Commission’s order to each other, and the additional failure by those lawyers and the respondent to communicate with each other.  Both the respondent and the respondent’s counsel believed the order had been complied with, although it had not been.  The respondent’s counsel acknowledged the mutual mistake in this matter, and admitted that such a mistake does not constitute reasonable grounds under 1-206(b)(2), G.S.

 

9.  It is concluded that the respondent’s failure to comply with the Commission’s order was without reasonable grounds.

 

10. It is also found that the respondent’s delay in providing the records was not willful.

 

11.  It is concluded that it would not be a proper exercise of discretion, or an appropriate use of the Commission’s resources, to hold any additional hearings to consider whether to impose a civil penalty in this matter. 

 

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 all orders of the Commission.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 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:

 

Lee Smith

17 Afton Terrace

Middletown, CT 06457

 

Board of Education,

City of Middletown

c/o Thomas B. Mooney, Esq. and

Rebecca P. Rudnick, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-254FD/paj/5/26/2005