FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Joaquin Sastre,  
  Complainant  
  against   Docket #FIC 2006-342

Planning and Zoning Department,

Town of Simsbury,

 
  Respondents January 10, 2007
       

 

The above-captioned matter was heard as a contested case on September 25, 2006, 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.  It is found that by letter dated June 8, 2006, the complainant addressed a request in twenty-two parts to the respondent for a wide variety of records relating to the “West Street Storage” project (the “requested records”). By letter dated June 19, 2006, the complainant followed up with a “reminder”.

 

3.  By letter dated July 4, 2006 and filed on July 7, 2006 with the Freedom of Information Commission (the “Commission”), the complainant appealed to the Commission, alleging that the respondent failed to provide the requested records, and stating that he may want civil penalties to be assessed against the respondent for violating the Freedom of Information Act (“FOIA”).

 

4.  Section 1-206(a), G.S., states in relevant part:

 

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…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) 

 

5.  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. (emphasis added) 

 

6.  At the hearing, it was stipulated that copies of all of the requested records maintained by the respondent had been provided to the complainant, and that the only contested issue remaining in this case was the respondent’s promptness in fulfilling its FOIA obligations.

 

7.  It is found that by letter dated July 18, 2006, Mr. Howard Beach, on behalf of the respondent, acknowledged the complainant’s request, “apologiz[ed] for the delay in responding”, and offered to make all requested records maintained by the respondent available upon pre-payment of a copying fee of $29.00.   

 

8.  It is found that Mr. Beach spent about one day of work to compile the requested records in all twenty-two categories. Mr. Beach’s administrative assistant made the copies of audiotapes of public meetings that were part of the request. 

 

9.  It is found that on August 3, 2006, the complainant was advised by telephone that the requested records were “ready to pick-up”. It is also found that a temporary staff member did not know where the records were located when the complainant came to the respondent’s office on Friday, August 4, 2006, that the complainant was then diverted for a few days, and that he received the requested records on August 11, 2006.

 

10.  It is also found that, while many of the requested records were newly created records that the complainant had not previously reviewed, the complainant had on at least five previous occasions made FOIA requests to the respondent and received the records that he had previously requested.

 

11.  It is further found that Mr. Beach is the sole fulltime professional employee of the respondent. Mr. Beach had very heavy staff responsibilities during the period from June 9, 2006 to August 3, 2006, particularly as a result of the departure of the town planner in November 2005. With only one administrative assistant, Mr. Beach provided staffing to five town boards and commissions (the Design Review Board, the Zoning Commission, the Planning Commission, the Inland Wetlands Commission, and the Zoning Board of Appeals). During the period from June 9, 2006 to August 3, 2006, these boards and commissions held at least thirty meetings, each of which Mr. Beach had to serve as staff before, during and after the meeting.

 

            12.  It is also found that Mr. Beach’s responsibilities included serving as the zoning enforcement officer and the conservation officer for the Town of Simsbury (“the town”), which involved processing an average of two zoning violations per week and writing a report each month. In these capacities, Mr. Beach assisted in representing the town in two major matters that were active during the period from June 9, 2006 to August 3, 2006: a) a negotiation between Ethel Walker School and the Trust for Public Land; and b) the development proposal of Riverbend Griffin Lands. Moreover, Mr. Beach is responsible for handling all substantive telephone calls to the respondent’s office as well as “counter traffic”. As a result of all these duties, Mr. Beach has worked approximately six to ten overtime hours per week for the year and a half period prior to the hearing.      

 

            13.  It is further found that the various boards and commissions set forth at paragraph 11, above, have sought additional staffing from the Board of Selectmen, and that as of the hearing date, a search for a new town planner was ongoing.    

 

14.  It is finally found that the “West Street Storage” project received all final approvals from the town on May 23, 2006, and that the respondent’s delay in providing the requested records to the complainant was not for the purpose of frustrating the complainant’s ability to participate in relevant regulatory proceedings.       

 

15.  It is concluded that the requested records described in paragraph 2, above, are “public records” within the meaning of 1-200(5) and 1-210(a), G.S.  

 

16.  It is also concluded that the respondent technically violated the requirements of 1-206(a), G.S., when it failed even to acknowledge the complainant’s request within four business days.

 

17.  It is also concluded, in light of the facts of this case, that the respondent provided the copies of the requested records promptly. These facts include: a) the scope of the requested records, as discussed at paragraphs 2 and 8, above; b) all the other duties of the respondent, as discussed at paragraphs 11 through 13, above; c) the respondent’s generally positive FOIA record with the complainant, as discussed at paragraphs 10, above; and d) the fact that the “West Street Storage” project had received all final approvals from the town before the date of the records request, as discussed at paragraph 14, above. Accordingly, it is concluded that the respondent did not violate the promptness requirements of 1-210(a) and 1-212, G.S., as alleged.

 

            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, at a minimum, acknowledge all requests for public records within the applicable number of business days required by 1-206(a), G.S. 

 

 

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:

 

Joaquin Sastre

12 Bushy Hill Road

Simsbury, CT 06070

 

Planning and Zoning Department,

Town of Simsbury

c/o Robert DeCrescenzo, Esq.

Updike, Kelly & Spellacy

One State Street

Hartford, CT 06103

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-342FD/paj/1/16/2007