FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Connecticut Coalition Against Millstone,  
  Complainant  
  against   Docket #FIC 2005-049

Edward Wilds, Director, Radiation Unit,

State of Connecticut, Department of

Environmental Protection,

 
  Respondent September 14, 2005
       

                                                                                               

            The above-captioned matter was consolidated for hearing with Docket #s FIC 2005-038, Connecticut Coalition Against Millstone v. Paul Eccard, First Selectman, Town of Waterford, and FIC 2005-064, Connecticut Coalition Against Millstone v. Richard Blumenthal, Attorney General, State of Connecticut. On May 26, 2005, the hearing officer denied respondent’s motion, made pursuant to 1-206(b)(4), G.S., to dismiss the appeal without a hearing. Accordingly, the matter was heard as a contested case on June 1, 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)(A), G.S.

 

2.  By three letters dated January 24, 2005, the complainant made a request to the Commissioner of Environmental Protection “to provide” records relating to: 1) “the current application by Dominion Nuclear Connecticut, Inc. to the U.S. Nuclear Regulatory Commission to renew the operating license of the Millstone Power Station”; 2) “human health impacts from radiological and chemical discharges to the environment from the Millstone Nuclear Power Station”; and 3) “radiological and chemical discharges at the Millstone Nuclear Power Station during its operating life, and the environmental impacts of such discharges” (the “requested records” or “records”).

 

3.  By letter dated January 25, 2005, the Office of the Deputy Commissioner of Environmental Protection responded to the complainant, indicating that a “search will be conducted as promptly as possible and when the search is completed, you will be notified.” The respondent received the requests from the Office of the Deputy Commissioner on January 27, 2005.

 

4.  By letter dated February 3, 2005 and filed with the Freedom of Information Commission (“Commission”) on February 7, 2005, the complainant appealed to the Commission, alleging that on February 2, 2005, the respondent notified the complainant that “the 1997 records of radiological emissions were missing from the DEP offices and that no other radiological records would be released for the Coalition’s inspection and review on February 3, 2005.” Indeed, the allegations relating to February 2 and 3, 2005 are the only specific allegations of a Freedom of Information Act violation in the complaint, though a denial of access to records is broadly alleged.       

 

5.  At the hearing and in its post-hearing brief, the complainant contended that the respondent failed “to timely comply with the Complaint’s [sic] request for documents”, citing the “four business days” time limit set forth in 1-206(a), G.S.     

 

6.  It is found that the records request set forth at paragraph 2, above, was extremely broad, particularly given its lack of any time limitations. It took the respondent about three full working days, with the involvement of approximately ten staff members, to assemble fifteen bankers sized boxes of records relating just to air radiation (the “radiation records”). This search was completed by February 8, 2005, when the complainant was informed by email that the radiation records were available for its inspection.

 

 7.  It is also found that the complainant’s records request came during the time that the respondent was preparing for the largest federally sponsored drill, at least in recent history, to protect against a terrorist attack (“TOPOFF”).

 

8.  Specifically relating to the events of February 2 and 3, 2005, it is found that on February 1, 2005, the complainant sent an email to an incorrect email address, attempting without success to notify the respondent that its representative would appear at the respondent’s office the next day, February 2, 2005, in order to commence an inspection of the radiation records.  

 

9. It is also found that when a representative of the complainant did appear at the respondent’s office on February 2, 2005, the visit was without actual notice to the respondent. The visit was also made notwithstanding the January 25, 2005 letter, described at paragraph 3, above, which stated to the complainant “when the search is completed, you will be notified.”

 

10.  It is further found that on February 2, 2005, the respondent had only had the records request for four business days, and that the respondent’s staff did make a reasonable effort to locate the one specific record the complainant sought, namely a 1997 emissions report. While this effort was not immediately successful, the 1997 emissions report was included with the assembled records when the February 8, 2005 email informed the complainant that the radiation records were available for its inspection.

 

11.  Section 1-206(a), G.S., states:

 

Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request.  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial. (emphasis added)

 

12. Section 1-210(a), G.S., states 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. (emphasis added)

 

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

 

14.  It is concluded that 1-206(a), G.S., does not require that in every case, regardless of individual facts and circumstances, public agencies must provide all records requested within four business days. In the present case, the acknowledgement letter, described at paragraph 3, above, was dated the very next day after the records request. Given the broad scope of the January 24, 2005 request, it is concluded that, in this case, the acknowledgement letter satisfied the “four business days” time limit set forth in 1-206(a), G.S.

 

15.  It is further concluded that the respondent did not violate 1-210(a), G.S., when he failed to produce the 1997 emissions report for inspection on February 2 and 3, 2005. If the respondent’s staff indicated that no other radiological records would be released for the Coalition’s inspection and review on February 2 and 3, 2005, such a statement also was not a violation 1-210(a), G.S. Respondent was entitled to a decent interval to assemble the radiation records, particularly in light of the scope of the request and the other responsibilities of the respondent at the time the request was made.

    

16.  Based on the facts and circumstances of this case, it is finally concluded that the production of the radiation records on February 8, 2005 was prompt, as required by 1-210(a), G.S.

 

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

 

1.      The complaint is hereby dismissed.

 

2.  The parties are advised that 1-206(b)(2), G.S., provides that the Commission has the authority to impose civil penalties on complainants who take an appeal “frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken….”

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 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:

 

Connecticut Coalition Against Millstone

c/o Nancy Burton

147 Cross Highway

Redding Ridge, CT 06876

 

Edward Wilds, Director, Radiation Unit,

State of Connecticut, Department of

Environmental Protection

c/o Dean Applefield, Esq.

Office of Legal Counsel

Department of Environmental Protection

79 Elm Street

Hartford, CT 06106-5127

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-049FD/paj/9/19/2005