FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Mark O. Weeks,  
  Complainant  
  against   Docket #FIC 2004-323
First Selectman, Town of Canterbury,  
  Respondent July 13, 2005
       

  

The above-captioned matter was heard as a contested case on January 7, 2005, 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.      It is found that the respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.      By letter dated June 24, 2004, the complainant made a request to the respondent for copies of all e-mails sent from or received at the e-mail addresses Paul1stselectman@aol.com and structionguy1@aol.com from November 4, 2003 through June 24, 2004 pertaining to all town business including but not limited to planning and zoning, inland and wetlands, and land use office issues.

                       

3.      By letter dated June 24, 2004, the respondent informed the complainant that the e-mail addresses that he referenced in his request are personal e-mail accounts and that the town has no e-mail accounts.  The respondent further informed the complainant that he had received one e-mail regarding a planning and zoning issue from the citizen involved which he forwarded to the Canterbury Planning and Zoning office and thereafter, discarded the e-mail message.  The respondent indicated that he could not recall receiving any other e-mail messages regarding town business during the time period specified.

     

4.      By letter dated July 19, 2004 and filed on July 20, 2004, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his request.  The complainant requested the imposition of a civil penalty.

 

5.      Section 1-200(5), G.S., provides in relevant part that:

 

Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

 

6.      Section 1-210(a), G.S., provides in relevant part that:

                       

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 section 1-212. 

 

7.      Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .” 

 

8.      Section 1-211(a), G.S., provides in relevant part that:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.

 

9.      It is found that the requested records are public records within the meaning of 1-200(5), 1-210(a), 1-211(a) and 1-212(a), G.S.

 

10.   It is found that the complainant obtained, from sources other than the respondent, copies of six e-mail messages sent to the respondent on his home computer relating to the conduct of the public’s business in the Town of Canterbury.

 

11.   At the hearing on this matter, the complainant explained that because the respondent failed to provide the six e-mail messages described in paragraph 10, above, he questioned whether the respondent conducted a good faith search for the requested records and provided all responsive records.  The complainant argued that, even if the respondent deleted all e-mails responsive to the complainant’s request, the respondent should be ordered to retrieve them from the hard drive of his computer because the e-mails pertain to official town business and should not have been deleted. 

 

12.   It is found that in three of the emails, the Paul1stselectman@aol.com address is among a long list of other addresses and is part of a mass mailing on the part of the sender to draw attention to a particular issue.  It is found that the remaining three e-mails are from a Mr. and Mrs. Noiseux and are directed to the land use department, and the respondent was sent a copy of those e-mails.

 

13.   It is found that respondent deleted the e-mails from Mr. and Mrs. Noiseux without printing them because he determined that the issues raised in them did not involve him personally or in his capacity as First Selectman.

 

14.   It is found that the respondent does not recall receiving the other three e-mails for which his address was part of the mass mailing and that if he had, he would have deleted them without reading them as is his practice with e-mails of that nature.

 

15.  It is found that there is no evidence in the record of this case that the respondent received any e-mails responsive to the complainant’s June 24, 2004 request other than the six e-mails described in paragraphs 10 and 11, above.

 

16.   It is concluded that the respondent violated the disclosure provisions of 1-210(a), 1-211(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the six e-mails described in paragraphs 10 and 11, above.

 

17.   The Commission, in its discretion, declines to order the respondent to search for and retrieve the six e-mails described in paragraphs 10 and 11, above, from the hard drive of his home computer since the complainant received those e-mails.

 

18.  The Commission declines to order a civil penalty in this matter.

 

19.  Finally, the respondent is advised that regardless of whether e-mails relating to the conduct of the public’s business are received at town hall or at his home, he should adopt the practice of printing and retaining all town related e-mails.

 

On the basis of the record concerning the above-captioned complaint, no order is recommended by the Commission.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 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:

 

Mark O. Weeks

13 Lisbon Road

Canterbury, CT 06331

 

First Selectman,

Town of Canterbury

c/o Paul Santoro, First Selectman

Town of Canterbury

One Municipal Drive

PO Box 26

Canterbury, CT 06331

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-323FD/paj/7/14/2005