FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Clarence Jennings,  
  Complainant  
  against   Docket #FIC 2006-228

William Kupinse, First Selectman,

Town of Easton,

 
  Respondents January 10, 2007
       

                                                                                                           

            The above-captioned matter was consolidated for hearing with Docket # FIC 2006-227, Clarence Jennings v. Scott Centrella, Selectman, Town of Easton, and Docket # FIC 2006-229, Clarence Jennings v. Robert Lessler, Selectman, Town of Easton.

All three matters were heard as contested cases on August 3, 2006, at which time the complainant and the respondent in the above captioned matter 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.  It is found that, by letter dated April 10, 2006, the complainant made a request to the respondent for three categories of records: a) 255 pages of exhibits dated or filed on March 10, 2003, and 158 pages of pleadings dated or filed on February 10, 2004, both the exhibits and pleadings in federal litigation captioned U.S. v. Beckman Coulter; b) a status report from attorney Barbara Kelly, dated March 10, 2003, mailed to the insurance carrier on the “USA compaction matter”, as well as a fax from attorney Greg Coffey, dated June 7, 2004, concerning EPA clean-up costs; and finally c) all billing invoices to the Town of Easton from January 2003 through April 2006 from Barbara Kelly, Wilson Elser, and Kostin Ruffkess, LLC (all of these records together being the “requested records”).  

 

3.  By letter dated April 12, 2006, the respondent stated that the April 10, 2006 request “appears to parallel your request of February 27, 2006 as supplemented by your response of March 7, 2006 to my letter of March 3, 2006.” The respondent further stated that: a) “to the extent we had pleadings, those items were available at a cost of $43.00”; b) he could not find the records described at paragraph 2b, above, but “[i]f I had, I probably would have claimed them exempt”; and finally c) copies of the invoices described at paragraph 2c, above, have been and are available  for the complainant to receive (subject to the need for minor updating, which would be completed “very shortly”).    

 

4.  By letter dated May 1, 2006, and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on May 2, 2006, the complainant appealed to the Commission, alleging that the respondent’s failure to provide the requested records violated the Freedom of Information Act (“FOIA”).

 

5.  Section 1-200(5), G.S., states:

 

“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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

 

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

 

7.  Section 1-210(b), G.S., states in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

….

 

(4) Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled;

 

8.  In response to an order from the Commission dated August 14, 2006 for production of the two records described at paragraph 2b, above, for an in camera inspection, the respondent submitted 101 records.  On the index to the in camera records, the respondent claimed the exemption at 1-210(b)(4), G.S., for each record. Such records are hereby identified as IC-2006-228-1 through IC-2006-228-101. The respondent also submitted an affidavit from himself with the in camera records, which affidavit was returned to counsel for the respondent by the hearing officer’s letter dated September 20, 2006.    

 

9.  It is found that the respondent also wrote the complainant a letter dated March 9, 2006, in response to the complainant’s letter dated March 7, 2006, which was referenced at paragraph 3, above. In addition to stating most of the points later incorporated into his letter dated April 12, 2006, the respondent expressly claimed the exemption at 1-210(b)(4), G.S., with reference to the records described at paragraph 2b, above.

 

10.  It is found that the respondent again wrote the complainant a letter dated May 2, 2006, reporting information received from the attorney representing certain Connecticut municipalities in the litigation referenced at paragraph 2, above. The respondent informed the complainant that there were two federal matters: a) 98-CV-4812, the records for which were archived in Lee Summit, Missouri; and b) 98-CV-4781, with approximately 964 documents, some of which were electronically filed starting in January 2004 and could be reviewed in the town clerk’s office.

 

11.  It is also found that the Town of Easton is one of approximately 160 entities that are co-defendants in federal “clean-up” litigation, as contributors to waste that ultimately was transported to the “Combe Fill South” landfills in New Jersey. As a result, neither the Town of Easton nor the other Connecticut municipalities that were co-defendants maintained copies of all court filings, including exhibits and pleadings, in their own offices. Their independent counsel maintained these records at their offices in New Jersey. Moreover, it is found that there was no evidence supporting the complainant’s assertion that records were sent “out of town” in order to avoid the scope of the FOIA.

 

12.  It is also found that the respondent again wrote the complainant a letter dated July 25, 2006, which concerned a record request not here at issue, but also enclosed a copy of a letter from attorney Barbara Kelly, the attorney representing certain Connecticut municipalities in the litigation referenced at paragraph 2, above.

 

13.  It is further found that the complainant did pay for and receive copies of some of the requested records from the respondent’s assistant, but declined to pay for and receive other requested records until “all” the records the complainant requested were available.

 

14.  By way of general background, it is found that the complainant made numerous, often overlapping record requests, in addition to the request of his April 10, 2006 letter, set forth at paragraph 2, above. (Indeed, the complainant made two overlapping records requests on April 10, 2006 alone.) These requests were not always precisely stated. It is also found that the respondent generally answered the complainant with certain relevant information or questions about the request. It is found, however, that the respondent often failed to address issues adequately, in part, because he had the misunderstanding that his obligations were fulfilled if he made available all non-exempt records that were maintained in his own office.

 

15.  More specifically, with reference to the requested records described at paragraph 2a, it is found that the respondent never stated whether the pleadings he had on file (see reference to April 12, 2006 letter at paragraph 3a, above) were the pleadings the complainant requested, as described at paragraph 2a, above. Nor did the respondent ever expressly address the request for exhibits set forth at paragraph 2a, above. Moreover, except for the electronically filed documents in 98-CV-4781 that could be reviewed in the town clerk’s office (see paragraph 9, above), the respondent did not clearly direct the complainant, in his May 2, 2006 letter or otherwise, to the Town’s custodian of the exhibits or pleadings described at paragraph 2a, above, or forward the complainant’s request to the appropriate agency, the Town’s own attorneys. Finally, the respondent never claimed any exemption concerning the records described at paragraph 2a, above.    

 

16.  The Commission has recently on at least two occasions reviewed the responsibilities of the chief administrative officer of a town to arrange for the production of public records maintained by agencies for which he is responsible. Docket #FIC 2005-367, Susan Friello v. Mayor, Town of East Haven; Docket #FIC 2005-431, Stephen Whitaker v. Jim Lash, First Selectman, Town of Greenwich; and Board of Selectman, Town of Greenwich. Both cases concluded that a Mayor or First Selectman had a duty to direct the complainant to the custodian of the requested records or forward the complainant’s request to the appropriate agency. These two recent decisions each cited Docket #FIC 90-337, Richard R. Lindquist v. Dean, Medical School, University of Connecticut Health Center (finding that the Chief Executive Officer of the University of Connecticut Medical School violated the FOI Act by failing to arrange prompt access to records of departments that are ultimately accountable to the Chief Executive Officer), and Docket #FIC 88-462, Kris Cieplak and Concerned Citizens for Clean Air v. Mayor, City of Ansonia (finding that it is reasonable for members of the public seeking several types of public records from a city to request them from the city's chief executive officer and expect to be directed to the appropriate record locations, and concluding that the chief executive officer violated the FOI Act by failing to provide access to records of attorneys' fees).

 

17.  It is concluded that the requested records are public records within the meaning of 1-200(5), 1-210(a) and 1-212(a), G.S., to the extent that they exist.  

 

18.  It is concluded, with reference to the request set forth at paragraph 2a, above, that the respondent violated 1-210(a) and 1-212(a), G.S., by failing to perform at least one of the following actions for each record within the scope of the request: a) make the requested record available from records he maintained; or b) direct the complainant specifically to the Town’s own attorneys; or c) forward the complainant’s request to the Town’s own attorneys.

 

19.  Based upon a review of the in camera records, it is found that both records described at paragraph 2b, above, are records pertaining to strategy and negotiations with respect to the pending litigation referenced at paragraph 9, above. Both records are expressly marked as privileged and confidential reports.

 

20.  Accordingly, it is concluded that the requested records described at paragraph 2b, above, are exempt from mandatory disclosure pursuant to 1-210(b)(4), G.S., and that the respondent did not violate 1-210(a) and 1-212(a), G.S., when he declined to disclose such records.  

 

21.  Based on the respondent’s letter dated April 12, 2006, described at paragraph 3, above, it is found that the respondent made the records described at paragraph 2c, above, available promptly to the complainant.

 

22.  It is concluded, with reference to the requested records described at paragraph 2c, that the respondent did not violate 1-210(a) and 1-212(a), G.S.

 

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

 

1.  With reference to the request set forth at paragraph 2a, the respondent shall, upon payment of the copying charge, forthwith provide the complainant with the requested records. Additionally, the respondent shall forward the complainant’s request to the Town’s attorneys, with specific direction to such attorneys that such request be fulfilled.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 10, 2007.

 

________________________________

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:

 

Clarence Jennings

71 Hall Road

Easton, CT 06612

 

William Kupinse, First Selectman,

Town of Easton 

c/o Ira W. Bloom, Esq.

PO Box 777

27 Imperial Avenue

Westport, CT 06881-0777

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-228FD/paj/1/16/2007