FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Patrick O’Hara,  
  Complainants  
  against   Docket #FIC 2006-480

Director, Human Resources, Town of Monroe;

and First Selectman, Town of Monroe,

 
  Respondents  June 13, 2007
       

 

The above-captioned matter was heard as a contested case on March 19, 2007, at which time the complainant and the respondents 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.  It is found that on September 7, 2006, the complainant personally visited the Human Resources Department of the Town of Monroe and made a verbal request to the respondent Director to inspect: a) written job descriptions of Town of Monroe employees; and b) current labor contracts with unions representing municipal employees (both items together being the “requested records” or sometimes the “records”). After the respondent Director stated that she needed some time to gather the requested records, the complainant and the respondent Director agreed that the complainant could return on September 11, 2006 to inspect the requested records.

 

2.  It is found that on September 11, 2006, the respondent Director informed the complainant that the respondent First Selectman had sent her and others an email stating that all requests for “information” from elected town officials were to be referred to the respondent First Selectman for a response, unless the staff member receiving a request was a liaison to a given Board. The complainant rejoined to the respondent Director that he was requesting to inspect records as a private citizen and his request did not relate to his status as a member of the Board of Education.

 

3.  It is found that on September 12, 2006, the respondent Director clarified to the complainant that the respondent First Selectman’s directive was operative. She stated that if the complainant wished to inspect records in the office of the respondent Director, the complainant would have to make a request to inspect such records to the respondent First Selectman. The respondent Director also confirmed that she maintained the requested records in her office.

 

4.  It is found that also on September 12, 2006, the administrative assistant to the respondent First Selectman told the complainant that, if he wished to inspect the requested records, the complainant was to make a written request to the First Selectman. The complainant did not ask whether a request would be honored in the absence of a written request.

    

5.  By letter dated September 14, 2006 and filed with the Freedom of Information Commission (“FOIC” or sometimes the “Commission”) on September 18, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by not allowing the complainant to inspect the requested records in response to a verbal request to the respondent Director.

 

6.  Section 1-200(5), G.S., states:

   

(5)  “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.

 

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

 

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 agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.   

 

8.  The Charter of the Town of Monroe (the “Charter”) provides at Chapter III, Section 5:

 

The Council and all boards, commissions, and agencies shall, in connection with any administrative service sought by them, deal directly and only through the First Selectman.

 

9.  At the hearing, the complainant contended that the FOIA, as a state statute, supercedes the Town Charter, and that membership on a board or commission should not abrogate his right as a citizen. The respondents contended that public officials have special responsibilities, and that the Charter establishes orderly procedures to handle the interaction of individual board and commission members with the fulltime staff members of the Town.     

 

10.  In their post hearing brief, the respondents argued that “there is no need to resolve the apparent conflict between [the] Charter and FOI procedure under the facts of this case because in any event the entity in charge of the requested records is the First Selectman.” In support of this conclusion, the respondents reasoned that “the First Selectman’s Office is [emphasis in original] also the same office as the Human Resources Department”, because the Charter mandates that the Human Resources Department is under the direction of the First Selectman and because the offices of the Human Resources Department and the First Selectman are physically linked. In the alternative, the respondents argued that the FOIA should not be held to supercede the Charter because the Charter only changes the process for making a request for records, not the substantive rights to receive records. Moreover, these changes in process apply, even at their most expansive possible application, only to the members of the Town government set forth in Chapter III, Section 5 of the Charter, not to members of the public generally.   

 

11.  Finally, both at the hearing and in their post hearing brief, the respondents argued that the administrative assistant to the respondent First Selectman did not require that the complainant make his request to inspect in writing, but merely requested that he do so.    

 

12.  It is found that the offices of the First Selectman and the Human Resources Department are interconnected, with separate entrances from a common hallway, but with common telephone lines and one administrative assistant. It is found that the job descriptions detailed at paragraph 1a, above, are maintained in a file cabinet beside the administrative assistant’s workstation, and that copies of the contracts detailed at paragraph 1b, above, are maintained both at the work station of the respondent Director and in the office of the respondent First Selectman.           

 

13.  It is found that during all times relevant to this case the complainant was a member of the Town of Monroe Board of Education.

 

14.  It is concluded, based on the findings of fact at paragraph 4, above, that the complainant was, in effect, required to make his request to inspect records in writing. The administrative assistant to the respondent First Selectman did not state to the complainant that a written request was only a voluntary courtesy. Nor was it the duty of the complainant as a layperson to cross-examine the administrative assistant as to whether his request to inspect records would still be honored, even if he did not meet the conditions she had stated.      

 

15.  It is concluded that, notwithstanding their shared offices, the respondent Director and the respondent First Selectman are separate and distinct public agencies within the meaning of 1-200(1)(A), G.S.

 

 16.  It is therefore concluded that this case presents primarily a question of law: whether the provisions of the Town Charter, as authorized by the home rule statutes, supercede certain requirements of the FOIA? Behind this broader inquiry lie two more specific questions: a) may a town charter require that a request to inspect records be made in writing? b) may a town charter be interpreted to require that certain members of the town government direct all of their FOIA requests to the First Selectman?      

 

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

 

18.  It is concluded that the Town Charter is not a mere “agency rule or regulation”, and therefore is not void pursuant to the full sentence in 1-210(a), G.S., which is underscored in paragraph 7, above. At the same time, the Town Charter is not federal law or a state statute that would supercede the FOIA requirements by the express terms of 1-210(a), G.S.      

 

19.  It is also concluded that the Charter provision set forth at paragraph 8, above, does not refer to FOIA requests, but only more generally to “any administrative service”. Because the specific always overrides the general in law, the specific requirements of 1-210(a), G.S., must supercede a general requirement concerning “any administrative service”. 

 

20.  It is further concluded that the Connecticut Supreme Court has on several occasions addressed the subject of conflict between state law and a town charter enacted pursuant to the home rule statutes (7-187 through 7-201, G.S.). In Windham Taxpayers Association v. Board of Selectmen of Windham, 234 Conn. 513, 535 (1995), the Supreme Court reaffirmed and applied the rule that:

 

a general law, in order to prevail over a conflicting charter provision of a [town] having a home rule charter, must pertain to those things of general concern to the people of the state, and it cannot deprive [towns] of the right to legislate on purely local affairs germane to [town] purposes.   

 

21.  As indicated by the questions at paragraph 16a) and 16b), above, there are two requirements at issue herein: a) that a request to inspect records must be made in writing; and b) that elected members of the town government must direct all of their FOIA requests to the First Selectman.  It is concluded that both requirements pertain to matters of “general concern to the people of the state” and not to “purely local affairs”. While the respondents assert otherwise in their brief, both requirements add burdens and impact the right to records under the FOIA in a manner that is “of general concern to the people of the state”. Id. Moreover, 1-212(d)(4), G.S., provides for waivers of fees for copies of records for elected officials of political subdivisions of the state under certain circumstances. This provision of the FOIA demonstrates that the General Assembly has considered access to records by local elected officials to be a matter of “general concern to the people of the state”.   

 

22.  It is also concluded that any public agency that maintains a record must make it available following a request and may not require the requestor to make a request to some other public agency. See Walter Kupchunos v. Freedom of Information Commission, CV 99 0496002S, February 15, 2000. The FOIA is designed to facilitate access to records, not to make the requestor deliver his or her request to a public agency of a town’s choosing. 

 

23.  It is further concluded that no written request may be required for a request to inspect records. But see 1-212(a), G.S., authorizing a requirement of a written request to receive copies.    

 

24.  It is therefore concluded that, by requiring the complainant to make a request to the respondent First Selectman to inspect records that were also maintained by the respondent Director, and requiring that such request be in writing, the respondents violated the requirements of 1-210(a), G.S.       

 

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

 

1.  Henceforth, each respondent shall make all non-exempt records that he or she maintains available, without any requirement that the requestor make a request to the respondent First Selectman.

 

2.  Henceforth, the respondents shall make records available for inspection based upon oral requests and shall not require a written request as a precondition to inspection of records.       

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 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:

 

Patrick O’Hara

282 Shelton Road

Monroe, CT 06468

 

Director, Human Resources, Town of Monroe;

and First Selectman, Town of Monroe

c/o Frederick J. Martin, Esq.

450 Monroe Turnpike

Monroe, CT 06468

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-480FD/paj/6/25/2007