FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Marvin Selsky,  
  Complainant  
  against    Docket #FIC 2006-510

Water Pollution Control Agency,

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 2006-464, Marvin Selsky v. Chairman, Planning and Zoning Commission, 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 September 13, 2006 and transmitted to an email account of Mr. William Pie, chairman of the respondent, with a copy to an email account of Ms. Alice Kelly, Vice Chairman of the respondent, the complainant made a request to the respondent for copies of three categories of records, including: a) records relating to a question posed in an August 27, 2006 email; b) tapes of the August 21, 2006 meeting of the respondent; and c) all records relating to certain items in the minutes of the August 21, 2006 meeting of the respondent (all together being the “requested records” or the “records”). (An earlier August 27, 2006 email to the same parties did not constitute a records request.)

 

3.  By email dated September 27, 2006, and filed with the Commission on September 28, 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”).

 

4.  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. 

 

5.  At the February 15, 2007 hearing, the complainant introduced evidence indicating that the Democratic Town Committee of Cromwell listed “billpiejr@aol.com” as the email address for Bill Pie in his capacity as a member of the Democratic Town Committee. It is found that this email account of the chairman of the respondent, which received the September 13, 2006 request, was a personal account that the chairman of the respondent checked only sporadically. Indeed, the chairman did not check this account from August 27, 2006 until around November 7, 2006.

 

6.  It is also found that on or about November 7, 2006, the clerk of the respondent, Sarah Voog, informed the chairman of the respondent of correspondence from the Commission stating that a complaint had been filed and including a copy of the records request. The Commission’s letter to the respondent was dated November 2, 2006.

 

7.  It is further found that on November 16, 2006, the clerk of the respondent provided the requested records to the town counsel, and that on November 22, 2006, the town counsel by letter offered copies of the records to the complainant. It is found that, at the time of the town counsel’s offer, the complainant was no longer interested in receiving the requested records.

 

8.  It is found that the Vice Chairman of the respondent did not have any actual knowledge of the copy of the complainant’s September 13, 2006 records request that was sent to her business email address. Her credible testimony was that in her work at Northeast Utilities, it was her policy not to open unidentifiable emails, some of which are marked as spam by the corporation’s software, and that she might have deleted the September 13, 2006 records request from the complainant.     

 

9.  It is found that the Vice Chairman became aware of the complainant’s records request in November, when a copy of his complaint was included in the materials for a regular meeting of the respondent. The Vice Chairman took the initiative of calling the complainant, spoke with his wife, and promised to work to get him the requested records.

 

10.  Finally, it is found that the town clerk maintains most of the respondent’s records, including minutes, agendas and exhibits, and that no request for records was made to her. 

 

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

 

12.  It is also concluded that, when the clerk of the respondent received the November 2, 2006 letter from the Commission, an individual person affiliated with the respondent had actual knowledge of the request for the records. It is further concluded that, based on the facts and circumstances of this case, no individual person affiliated with the respondent should have had knowledge of the request for the records prior to November 2, 2006.        

 

13.  It is concluded that, in light of the proceedings pending at the Commission and the desire to seek advice from counsel, the respondent acted promptly within the requirements of 1-210(a), G.S., by forwarding the records to the Town Counsel on November 16, 2006.

 

14.  Based on the facts and circumstances of this case, it is finally concluded that the respondent did not violate the requirements of 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

 

Water Pollution Control Agency,

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/2006-510FD/paj/5/10/2007