FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Lucy DiRocco,  
  Complainant  
  against   Docket #FIC 2006-429

John Hodge, First Selectman,

Town of New Fairfield,

 
  Respondent August 8, 2007
       

 

The above-captioned matter was heard as a contested case on January 31, 2007, at which time the complainant and respondent appeared, stipulated to certain facts 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), G.S.

 

2.      By letter dated August 16, 2006, postmarked August 18, 2006 and filed on August 24, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.                          demanding that the public fill out a prepared Freedom of Information request form that states a four day time before having access to any public document;

b.                          refusing to present requested public documents “promptly” for viewing that are easily accessible; and

c.                          demanding a fee from an elected official for copies of public records.

 

3.      It is found that the complainant is a member of the New Fairfield Board of Finance (hereinafter “the board”).

 

4.      It is found that the board held a meeting on July 19, 2006 and that during that meeting, the complainant publicly requested a copy of the RFPs regarding the recent appointment of Town Counsel from the respondent who was at the speaker’s podium providing a “Legal Update.”  It is found that the respondent replied by asking the complainant to call his office in the morning.

 

5.      It is found that on July 20, 2006 the complainant left a message for the respondent with his secretary restating her request for a copy of the RFPs regarding the recent appointment of Town Counsel.

 

6.      It is found that the respondent left a message on the complainant’s telephone voice mail informing her that she needed to complete a request form which was available at his office, that she would be charged fifty cents per page for any copy requested, that she had to pre-pay for the copies and that his office had 4 days to comply with her request.

 

7.      It is found that on the morning of July 21, 2006, the complainant contacted the respondent’s office and informed his secretary that she wanted to inspect the requested records first and would request a copy of any particular record as required.

 

8.      It is found that on the afternoon of July 21, 2006, the complainant arrived at the office of the respondent during regular business hours to inspect the requested records at which time she was again informed that she was required to complete a request form and prepay for the copies.

 

9.      It is found that after some discussion between the complainant and the respondent’s secretary, and then between the complainant and the respondent, the complainant was compelled to complete the request form.

 

10.   It is found that even though the complainant was led to believe by the respondent, and his secretary, that the requested records were in the respondent’s office at the time she made her July 21, 2006 request in that office, she was not permitted to inspect the requested records at that time.

 

11.   It is found that the requested records are maintained in the Town of New Fairfield’s Finance Department (hereinafter “Finance Department”), which is in a building across the street from the respondent’s office.

 

12.  It is found that the respondent forwarded a letter regarding the complainant’s request to the Finance Department on the day she submitted her July 21, 2006 written request that was received by that office on July 25, 2006.

 

13.  It is also found that the Finance Department was required to inform the respondent when the requested records were compiled, instead of contacting the complainant directly.

 

14.   It is found that the respondent issued a letter, dated July 26, 2006, to the complainant indicating that the requested records were available for inspection.

 

15.  It is found that a member of the Finance Department provided the complainant with access to inspect the requested records on August 3, 2006 in that office which was when that member returned to that office after a brief absence.

 

16.   It is found that the complainant requested a copy of sixteen pages of the records she inspected on August 3, 2006 and was charged fifty cents per page, pursuant to the respondent’s directive, even though she explained that she requested the records in her official capacity as a member of the Board of Finance. 

 

17.   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.

 

18.   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. 

 

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

 

20.   Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” 

 

21.   Section 1-212(d)(4), G.S., further provides that: “[T]he public agency shall waive any fee provided for in this section when:

 

The person requesting the record is an elected official of a political subdivision of the state and the official (A) obtains the record from an agency of the political subdivision in which the official serves, and (B) certifies that the record pertains to the official’s duties.”

 

22.   With respect to the complainant’s allegation described in paragraph 2a, above, it is found that the form in question states in relevant part that “there is a 4 day time limit in responding to a formal request.”

 

23.   The respondent contends that the form properly advises the public of the time limit set forth in 1-206(a), G.S., to respond to a records request citing Docket #FIC 2005-466, In re Wood v. Director, Department of Public Works, Town of North Haven, by which the respondent contends this Commission concluded that the respondent in that case had not violated the FOI Act by informing the requestor that “it might take up to four days to process” his request.

 

24.   It is found, however, that 1-206(a), G.S., does not establish a time limit by which a public agency must respond to a records request but rather that section provides a definite time period beyond which a requester may invoke the right to appeal to this Commission pursuant to 1-206(b)(1), G.S. 

 

25.   It is also found that it is not unreasonable to read the form to state that there is a four-day waiting period for compliance with record requests.

 

26.   It is found that the language described in paragraph 22, above, is unnecessary in light of the statutory requirement that records requests, whether for copies or access to inspect, must be complied with promptly, which is a requirement that must be determined on a case by case basis and that depends on the nature of the request.

 

27.   It is also found that, pursuant to 1-212(a), G.S., a public agency is only permitted to require a written request when the request is for a copy of a public record.

 

28.   It is further found that the complainant clearly amended her request from one for copies to one for access to inspect the requested records and that even though she immediately requested copies after her inspection, it was not until the time she requested copies that she could have been required to put her request in writing. 

 

29.   It is concluded therefore that the respondent violated 1-210(a) and 1-212(a), G.S., by requiring the complainant to put her request to inspect the requested records in writing.

 

30.   With respect to the complainant’s allegation described in paragraph 2b, above, it is found that the respondent did not provide any evidence to explain why he failed to tell the complainant on the evening of July 19, 2006 or on the morning of July 20, 2006, when he left the message on her voicemail, that he did not maintain the requested record and that she should make her request to the Finance Department. 

 

31.  It is also found that the respondent failed to explain why he and his secretary led the complainant to believe that he had the requested records in his office when he did not.

 

32.  It is found that the Finance Department was able to compile the requested records in one day and that had the complainant been directed to that office on July 19th or 20th, she probably would have gotten access to inspect the requested records on the 20th or the 21st of July rather than August 3, 2006.  

 

33.   It is found that, based on the facts and circumstances of this case, the respondent’s requirement that the complainant’s records request be channeled through him and his office before she could be provided access to inspect the records, served only to unduly delay such access. 

 

34.   It is concluded therefore that the respondent violated the promptness provisions of 1-210(a), G.S., by unduly delaying the complainant’s access to inspect the requested records.

 

35.   With respect to the complainant’s allegation described in paragraph 2c, above, it is found that the complainant is an elected official, within the meaning of 1-212(d)(4), G.S.  It is also found that the records at issue are records of the town in which the complainant serves, within the meaning of 1-212(d)(4), G.S.

 

36.   The determinative issue in this regard is whether the complainant’s request was made in her capacity as an elected official within the meaning of 1-212(d)(4), G.S., or as a private citizen. 

 

37.   The respondent contends that because the Board of Finance is not involved in the selection and hiring of the Town Counsel, the requested records do not fall within the scope of the complainant’s official duties as a member of the board.

 

38.  It is found, however, that the complainant’s records request directly pertains to her concern and inquiry into possible irregularities surrounding the process by which the Town Counsel was selected, and certain terms of his contract, which include his compensation as the Town Counsel, and therefore, pertains to her duty as an elected official to respond to concerns and possible improprieties with respect to the town’s expenditures and other budgetary issues.

 

39.   It is found that nothing in 1-212(d)(4), G.S., limits the “official’s duties” to include only business that is formally before the board of finance or business that has been formally assigned to a board of finance committee.

 

40.   It is further found, however, that the respondent believed, based upon the complainant’s initial statement, that the complainant wanted the records for her “own information” rather than for her official duties.

41.   Consequently, based on the facts and circumstances, it is concluded that the complainant has met the criteria set forth in 1-212(d)(4), G.S., and therefore, the respondent technically violated the FOI Act by requiring the complainant to pay fifty cents per page for a copy of the requested records.

 

 

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

 

1.      Henceforth the respondent shall strictly comply with the provisions of 1-210(a), and 1-212, G.S., and the fee waiver provisions of 1-212(d)(4), G.S.

 

2.      The respondent shall forthwith reimburse the complainant the eight-dollar fee she was charged for the copies she received as described in paragraph 16, of the findings above.

 

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:

Lucy DiRocco

22 Columbia Drive

New Fairfield, CT 06812

 

John Hodge, First Selectman,

Town of New Fairfield

c/o John F. Keating, Jr., Esq.

71 Route 39, Suite One

New Fairfield, CT 06812

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-429FD/paj/8/14/2007