FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Jody Gemmell,  
  Complainant  
  against   Docket #FIC 2006-433

John Hodge, First Selectman,

Town of New Fairfield,

 
  Respondent August 22, 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.

 

The Commission takes administrative notice of the record in Docket #FIC 2006-429, Lucy DiRocco v. John Hodge, First Selectman, Town of New Fairfield.

 

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 on August 8, 2006, the complainant attempted to inspect certain public records at the respondent’s office during regular business hours.  It is also found that the complainant, in an effort to expedite her request, committed it to writing prior to arriving at the respondent’s office and was prepared to furnish that request to the respondent.  It is also found that the complainant did not expect to review all of the records she requested at the time of her request.

 

3.      It is found that the complainant was required to complete a form prepared by the respondent’s office which required her name, address, telephone number, date of request and a list of the records requested.  It is found that the form included a statement that “there is a four day time limit in responding to a formal request.”

 

4.      It is found that on or about August 12, 2006, the complainant received a letter from the respondent indicating that some of the records she requested had been compiled and were available for inspection.  It is found that the letter requested that the complainant contact the respondent’s office prior to arriving to ensure the records were available.

 

5.      It is found that the complainant arrived at the respondent’s office on August 17, 2006 during regular business hours to inspect the records described in paragraph 4, above, but was precluded from inspecting them because she had not called prior to her arrival and because at the time of her arrival the requested records were in the personal possession of the respondent.

 

6.      It is found that the complainant informed the respondent’s secretary that she would return the next day to inspect the records described in paragraph 4, above (hereinafter “requested records”), and on August 18, 2006 the complainant inspected such records.

 

7.      By letter dated August 24, 2006 and filed on August 28, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       requiring her to fill out a form with personal information before honoring a request to inspect records;

 

b.      believing he is entitled to wait four days before notifying a requester of records that the requested records are available;

 

c.       requiring an individual to call ahead to inspect records thereby essentially requiring them to make an appointment;

 

d.      maintaining public records in his private possession and thereby precluding access to such records by his staff and the public;

 

e.       failing to have the requested records available for her inspection on August 17, 2006, thereby effectively denying the complainant’s original request on August 8, 2006; and

 

f.        refusing to provide, in writing, his reason for denying access to the requested records.

 

The complainant requested the imposition of a civil penalty against the respondent.

 

8.      Section 1-200(5), G.S., defines "public records or files" to mean:

 

[a]ny 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".

 

9.      Section 1-210(a), G.S., further provides, 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 . . . 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.  Each such [public] agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place.... [Emphasis added].

 

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

 

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

 

12.   With respect to the allegation described in paragraph 7a, above, the respondent contends that it is not his practice to require a written request prior to providing access to inspect public records and further that his office cannot locate a copy of the completed form that the complainant claims she was required to complete. 

 

13.   It is found, however, that the complainant provided her copy of the completed form as evidence in this case and it is further found therefore, that the respondent required the complainant to complete the request form as found in paragraph 3, above.

 

14.  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.

 

15.   It is further found that the complainant clearly requested access to inspect the requested records and that even though she requested copies after her inspection, and notwithstanding the fact that she had already put her request in writing, it was not until the time she requested copies that she could have been required to put her request in writing. 

 

16.   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.

 

17.   With respect to the allegation described in paragraph 7b, above, 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.  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. 

 

18.   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. 

 

19.   It is also found that it is reasonable to read the form at issue to state that there is a four-day waiting period for compliance with records requests.

 

20.   It is found that the language described in paragraph 3, 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.

 

21.   With respect to the allegation described in paragraph 7c, above, it is found that the respondent required the complainant to make an appointment prior to providing access to inspect the requested records.

 

22.   It is found that requiring an appointment to access public records is an impermissible precondition on the rights of access granted by 1-210(a), G.S.  Such precondition conflicts with, and "diminishes" the rights granted by such provision.

 

23.   It is concluded that the respondent violated 1-210(a), G.S., by requiring the complainant to make an appointment to inspect the requested records.

 

24.   With respect to the allegation described in paragraph 7d, above, it is found that some of the records the complainant requested were related to ongoing construction and grant applications which the respondent had in his office at the time the complainant arrived on August 17, 2006.

 

25.   It is found that the respondent may have been preoccupied with other business at the time the complainant arrived at his office on August 17, 2006.  However, it is also found that the respondent did not explain why he did not simply give the records to a member of his staff, or allow one of them to retrieve the records, so as to provide access to the complainant to inspect the requested records.

 

26.   It is found that members of the respondent’s staff were not permitted to retrieve public records that were in his office and therefore such records were in an inaccessible place.

 

27.   It is found therefore that the respondent violated 1-210(a), G.S., by failing to keep and maintain all public records in his custody at his regular office or place of business in an accessible place.

 

28.   With respect to the allegation described in paragraph 7e, above, it is found that on August 17, 2006, the respondent did not provide the complainant with access to inspect the requested records.  It is also found that the respondent’s refusal was based on the fact that the complainant had not cooperated by calling prior to arriving pursuant to the respondent’s request and because he was unwilling to retrieve the records himself from his office or permit a member of his staff to do so.

 

29.   It is found that while the respondent may have been engaged with other business, he was able, however, to be interrupted long enough to deny the complainant access to inspect the requested records as described in paragraph 28, above.

 

30.   It is found that, under the facts and circumstances of this case, the respondent unduly delayed the complainant’s access to inspect the requested records.

 

31.   It is concluded therefore that the respondent denied the complainant prompt access to inspect the requested records on August 17, 2006 and thereby violated the promptness provision of 1-210(a), G.S.

 

32.   With respect to the allegation described in paragraph 7f, above, it is found that when the respondent informed the complainant on August 17, 2006 that he was not going to provide her with access to inspect the requested records, at that time, for the reasons described in paragraph 28, above, the complainant asked him to put the reasons in writing and the respondent refused.

 

33.   It is found that under the specific circumstances described in paragraph 32, above, the respondent was not required under the FOI Act to put his reasons in writing and therefore it is concluded that the respondent did not violate the Act as alleged in paragraph 7f, above.

 

34.   It is found that the violations in paragraphs 16, 23 and 31, above, were without reasonable grounds.

 

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 promptness, accessibility and the inspection provisions of 1-210(a) and 1-212(a), G.S.

2.      The respondent first selectman, as the official directly responsible for the violations described in paragraphs 16, 23 and 31 of the findings above, shall remit to the Commission a civil penalty in the amount of $100.00.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 22, 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:

 

Jody Gemmell

45 Lavelle Avenue

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/2006-433FD/paj/8/22/2007