FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Marvin Selsky,  
  Complainant  
  against   Docket #FIC 2006-464

Chairman, Planning and Zoning Commission,

Town of Cromwell,

 
  Respondent May 9, 2007
       

 

The above-captioned matter was consolidated for hearing with Docket #FIC 2006-441, Marvin Selsky v. Economic Development Commission, Town of Cromwell; Docket #FIC 2006-462, Marvin Selsky v. First Selectman, Town of Cromwell; Docket #FIC 2006-463, Marvin Selsky v. Town Planner Town of Cromwell; and Docket #FIC 2006-510, Marvin Selsky v. Water Pollution Control Agency, Town of Cromwell. All five consolidated matters were heard as contested cases on December 8, 2006, and February 15, 2007, at which times 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 email dated August 15, 2006 and transmitted to two email addresses of the respondent, the complainant made a request to the respondent for copies of seven categories of records concerning an application involving the “Laban property” and including relevant records of communications between various individuals (the “requested records” or the “records”).

 

3.  It is found that by email dated August 15, 2006, the respondent acknowledged the request, stating: “I intend to respond to this request….I just need to figure out what all this entails.” Additional emails from the complainant, the respondent, and again from the complainant followed, all dated August 15, 2006.

 

4.  It is further found that, by letter addressed to the complainant and dated August 18, 2006, the Town Planner, who serves on the staff of the Planning and Zoning Commission, stated that he had made copies of sixty nine pages of records within the scope of the complainant’s request, except:  a) correspondence with the Town attorney pertaining to litigation; and b) notes made during an executive session of the Planning and Zoning Commission. Upon payment of copying fees, the Town Planner stated that the complainant could receive the copies of the records.

 

5.  By email dated Sunday, September 10, 2006, and filed with the Commission on September 11, 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”).

 

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.  It is concluded that the requested records are “public records” within the meaning of 1-200(5), 1-210(a), and 1-211(a), G.S. It is also concluded that the Town Planner, who serves on the staff of the Planning and Zoning Commission, performed a prompt and diligent search for the requested records.   

 

8.  It is found that the respondent is an unpaid volunteer public agency, who is not generally present at town hall during regular business hours and is a fulltime employee of an engineering firm in Groton, Connecticut.   

 

9.  It is also found that, following the initial exchange of emails on August 15, 2006, the respondent was informed that the Town Planner had made the requested records available by letter dated August 18, 2006. See Docket #FIC 2006-463, Marvin Selsky v. Town Planner Town of Cromwell, which addresses an identical request for records.

 

10.  As also found in Docket #FIC 2006-463, it is found that at the February 15, 2007 hearing the Town Planner credibly testified that his assistant, Greta O’Connell, clearly remembers mailing the August 18, 2006 letter. At the same hearing, the complainant credibly testified that he never received the Town Planner’s August 18, 2006 letter. The inside address on the copy of the Town Planner’s letter correctly reflects the complainant’s home address. At the hearings, neither party addressed the two categories of records that were not offered in the August 18, 2006 letter, as set forth at subsections a) and b) of paragraph 4, above.           

 

11.  Based on the testimony set forth at paragraph 10, it is found that the Town Planner’s assistant mailed the August 18, 2006 letter, but for some reason, the complainant had no knowledge of receiving it.

  

            12.  It is concluded that the respondent herein was reasonable in relying on the Town Planner’s representations concerning the transmittal of the August 18, 2006 letter. Therefore, the respondent herein 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.      The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 9, 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:

 

Marvin Selsky

82 Willowbrook Road

Cromwell, CT 06416

 

Chairman, Planning and Zoning Commission,

Town of Cromwell   

c/o John W. Bradley, Jr., Esq. and

Jonathan J. Blake, Esq.

Rome McGuigan, P.C.

One State Street

Hartford, CT 06103-3101

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-464FD/paj/5/10/2007