FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Kimberly Simoncini and

Hammonasset Construction, LLC,

 
  Complainants  
  against   Docket #FIC 2006-356
Mayor, Town of Vernon,  
  Respondent March 28, 2007
       

 

The above-captioned matter was heard as a contested case on September 25 and October 16, 2006, at which times the complainants 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 email dated June 23, 2006, the complainants addressed a eight part request to the respondent for a wide variety of records concerning the Bolton Road Bridge Project, including: a) “all records of State and Federal Funding to the Town of Vernon for the fiscal year 2005-2006 for all road, bridge [sic] and infrastructure”; b) the “Town of Vernon’s policy on Bid Protest”; c) the “Town of Vernon’s policy on discrimination”; d) the “Town of Vernon’s policy on Bidding and Contractor Selection Criteria”; e) “Bid Documents submitted at the time of bid by the 2nd bidder”; f) “[a]ny correspondence to or from the 2nd bidder”; g) “any record of telephone conversations by and between any Town Employee or Agent (including Cardinal Engineering) and the 2nd bidder (Pondview Construction)”; and h) “[a]ny correspondence, including email or any transmission by and between Cardinal Engineering and the Town of Vernon” (all eight items together being the “requested records”).

 

3.  By letter dated July 12, 2006, the Town Administrator, Christopher Clark, as agent for the respondent, acknowledged the June 23, 2006 request, apologized for “any delay”, and noted “the transition in [the town’s] Administration”.

    

4.  By letter dated and filed with the Freedom of Information Commission (“FOIC” or sometimes the “Commission”) on July 13, 2006, the complainants appealed to the Commission, alleging that the respondent failed to provide the requested records in violation of the Freedom of Information Act (“FOIA”). The complaint also stated that: “[a]lthough I have not requested it, I would also like to review any correspondence, transmissions, records of telephone conversations by and between Cardinal Engineering (acting as Agent for the Town of Vernon) and any entity relating to references or discussions about our company, including Anchor Engineering, Chelsea GCA, City of New Haven and Town of Bozrah.”

 

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. 

 

6.  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.  

 

7.  It is found that the Town of Vernon had a transition in the position of Town Administrator on July 1, 2006. Laurence Shaffer completed his tenure as Town Administrator on June 30, 2006, and Christopher Clark commenced his tenure as Town Administrator on July 1, 2006. The complainants’ June 23, 2006 FOIA request was made during this time of transition.     

 

8.  It is also found that, by letter dated August 4, 2006, Town Administrator Christopher Clark, offered the complainants an opportunity to inspect, and upon appropriate payment, to receive copies of records containing “the information you have sought…relative to the Bolton Road Bridge construction project”.  

 

9.  It is also found that on August 11, 2006, the complainants viewed the entire “contract file” concerning the Bolton Road Bridge Project. The respondent did not claim that any of the records in the “contract file” were exempt.  The “contract file” was described as the “one file where everything is kept [concerning the Bolton Road Bridge Project]”. Based upon a search by the secretary to the Town Administrator, the “contract file” included “everything sent to us [the Town Administrator’s office]”. Many records concerning the Bolton Road Bridge Project originated from the office of the Town Engineer. But neither the Town Engineer nor the secretary to the Town Administrator testified at the hearing.  

 

10.  It is found that there was no evidence that Town Administrator Christopher Clark, acting as agent for the respondent, withheld any of the requested records on August 11, 2006. It is also found, however, that parts of the complainants’ request were narrowly construed. For example, in response to the portion of the request set forth at paragraph 2c, above, only the narrow anti-discrimination statements in the bid documents were provided, rather than the broader anti-discrimination policies of the Town of Vernon. (At the October 16, 2006 hearing, the respondent voluntarily agreed to furnish to the complainants: a) new records that came into the “contract file” after the June 23, 2006 request; as well as b) the broader anti-discrimination policies of the Town of Vernon.)            

 

11.  Finally, it is found that, by letter dated August 18, 2006, Town Administrator Christopher Clark provided a partial response to the portion of the records request set forth at paragraph 2a, above.

 

12.  It is also found that the Town of Vernon had a contract with Cardinal Engineering Associates, Inc. (“Cardinal”) to assist with the Bolton Road Bridge Project. Cardinal was retained to prepare bid documents, to manage the bidding process, and to make a recommendation concerning the award of the construction contract.

 

13.  It is also found that the complainants did not make a request for correspondence and records of telephone conversations between Cardinal and any other entity, including Anchor Engineering, Chelsea GCA, City of New Haven and Town of Bozrah, concerning discussions about the complainant Hammonasset Construction, LLC. As a result, such records are beyond the scope of this contested case. 

   

 14.  It is concluded, based on the facts of this case, that the records offered to the complainants on August 4, 2006 were offered promptly. However, based upon the findings at paragraphs 9 and 10, above, it is also concluded that a diligent search has not been performed for all of the requested records maintained by the Town of Vernon. 

 

15.  Because town officials under the supervision of the respondent have not completed a diligent search, it is therefore concluded that the respondent violated the requirements of 1-210(a) and 1-212(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 respondent shall direct the Town Engineer to perform a diligent search of the records he maintains for all of the requested records set forth in paragraph 2, above. The respondent shall provide the complainants with an affidavit from the Town Engineer detailing the scope, duration and results of his search. If any additional requested records are located as a result of such search, beyond those already provided to the complainants, the respondent shall furnish such records to the complainants forthwith, subject to any claims of exemption.

 

2.  If the complainants wish to pursue any FOIA rights they may have to receive the records described at paragraph 13, above, the complainants should make a request directly to the respondent.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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:

 

Kimberly Simoncini and

Hammonasset Construction, LLC

PO Box 41

64 Groveway

Clinton, CT 06413-0041

 

Mayor,

Town of Vernon

c/o Martin B. Burke, Esq.

130 Union Street

PO Box 388

Rockville, CT 06066

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-356FD/paj/4/3/2007