FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Kerry Brooks Swift,

 
  Complainant  
  against   Docket #FIC 2006-420

John A. Goetz, Superintendent of

Schools, Brookfield Public Schools,

 
  Respondent August 8, 2007
       

 

The above-captioned matter was heard as a contested case on November 6, 2006, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The Commission takes administrative notice of the record and final decision in Docket #FIC 2006-125, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools.

 

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), G.S.

 

2.      It is found that by letter dated August 10, 2006, the complainant made a request to the respondent for access to inspect “any and all paperwork concerning Pronto Environmental from 2003 to the present date,” which should include, but not be limited to “internal and external e-mails, faxes, letters, phone messages, work schedules, list of workers who worked on Brookfield project(s) . . .” (hereinafter “the August 10, 2006 request”).  It is found that the complainant also asked to review “any and all invoices and canceled checks for Pronto Environmental and/or Thomas Moffitt and/or Jason Opperman from 2003 through the present date,” however, the complainant stated at the hearing in this matter that her request for canceled checks is not at issue and therefore, will not be addressed herein.

 

3.      By letter dated August 18, 2006 and filed on August 21, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to fully comply with her August 10, 2006 request.  The complainant requested the imposition of a civil penalty against the respondent.

 

4.       Section 1-200(5), G.S., provides in relevant part that:

 

“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.

 

5.       Section 1-210(a), G.S., provides in relevant part that: 

 

[e]xcept 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 . . . or . . . receive a copy of such records in accordance with section 1-212. 

 

6.       It is found that the requested records, to the extent that they exist, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

7.       It is found that Pronto Environmental, Inc. (hereinafter “Pronto”), is a mechanical company that installs and repairs heating and cooling systems, plumbing and sheet metal for commercial and industrial properties. 

 

8.      It is found that Pronto frequently provides its mechanical services to the Town of Brookfield, and its school district, sometimes pursuant to a written contract but more often without one.  It is also found that Pronto removed and replaced the exhaust fan/ventilation system in Huckleberry Hill School in the Town of Brookfield during the summer of 2004.

 

9.      It is found that on or about August 14, 2006, the complainant was given access to inspect records that were compiled in response to her August 10, 2006 request.

 

10.  It is found that the records compiled for the complainant’s inspection only included invoices submitted to the Town of Brookfield by Pronto.

 

11.   It is found that the complainant requested copies of the records she inspected but there is conflicting testimony regarding whether she received copies of all the records that she inspected on August 10, 2006 or whether she only received copies of the records she specifically requested by tabbing them with “yellow stickies.”

 

12.  It is found, however, that at the hearing on this matter the complainant was provided with a set of invoices so that the complainant is now in possession of all of the responsive invoices. 

 

13.   At the hearing in this matter and in her post hearing brief, the complainant contended that she should have been provided with a work schedule, a list of the workers, contracts between Pronto and the Town of Brookfield, and the specifications the Brookfield school district provided for the work that was done by Pronto.  The complainant contended that in her experience with projects such as the removal and replacement of exhaust fan/ventilation systems, far more paperwork is generated than that which was provided by the respondent, including, but not limited to, the records described in this paragraph.

 

14.  It is found that, while Docket #FIC 2006-125, Kerry Brooks Swift v. John A. Goetz, Superintendent of Schools, Brookfield Public Schools (hereinafter “Docket #FIC 2006-125”) is not at issue in this complaint and the forgoing is not a reversal of any finding or conclusion in that matter, the complainant, after the hearing and final decision in that matter, received records from another state agency authored and signed by the respondent that would have been responsive to her request in that case.

 

15.  It is found that the respondent did not provide the complainant with access to inspect, or a copy of, the records described in paragraph 14, above, in docket #FIC 2006-125 and did not recognize the records or remember forwarding them to the state agency when asked about them at the hearing in this matter.

 

16.   It is found therefore that it is reasonable to question the thoroughness of the respondent’s search for records responsive to the complainant’s August 10, 2006 request.

 

17.  In that regard, it is found that because asbestos flex connectors may have been removed during the removal and replacement of the exhaust fan/ventilation system at Huckleberry Hill School, and pursuant to certain instructions for the removal of such, the respondent probably received from Pronto: a work schedule which should have included the specific start date and an estimated completion date; and a list of the workers by name, social security number and employer.

 

18.   It is also found that because the removal and replacement of the exhaust fan/ventilation system at Huckleberry Hill School was so expensive, totaling approximately twenty-six thousand dollars, that there probably is a written contract with Pronto for the work. 

 

19.  It is also found that because one invoice pertaining to the removal and replacement of the exhaust fan/ventilation system at Huckleberry Hill School states that such work was done “per Brookfield school specifications” that there probably is a record outlining the specifications.

 

20.   It is found that the records described in paragraphs 17 through 19 are, to the extent such records exist, responsive to the complainant’s August 10, 2006 request.

 

21.   It is found that the respondent failed to prove that he conducted a diligent and thorough search for all records responsive to the complainant’s request and that the records described in paragraphs 17 through 19, above, may very well exist and be maintained by the respondent.

 

22.  Consequently, it is found that the respondent failed to provide the complainant with access to inspect all records responsive to her August 10, 2006 request and it is concluded that he thereby violated the disclosure provisions of 1-210(a), G.S.

 

23.  It is also found that the complainant did not take this complaint for the sole purpose of harassing the respondent nor does this complaint represent an abuse of the Commission’s process or its resources.  Consequently, the respondent’s request for a civil penalty against the complainant, made in his post-hearing brief, is denied.

 

24.   Likewise, the Commission declines to consider the complainant’s request for a civil penalty against the respondent.

 

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

 

1.      The respondent shall forthwith undertake a diligent search for the requested records described in paragraphs 17 through 19 of the findings, above, among all of the records maintained by him.  If the requested records are located, the respondent shall forthwith provide a copy of such records to the complainant, with social security numbers redacted, free of charge.  If no responsive records are found, the respondent shall provide this Commission and the complainant with an affidavit detailing the scope, duration, and results of the search for such records.

2.      Henceforth the respondent shall strictly comply with the provisions of 1-210(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 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:

Kerry Brooks Swift

25 Pocono Ridge Road

Brookfield, CT 06804

 

John A. Goetz, Superintendent of

Schools, Brookfield Public Schools

c/o Mark J. Sommaruga, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-420FD/paj/8/14/2007