FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Ford Fay,  
  Complainant  
  against   Docket #FIC 2008-060

Planning and Zoning Commission,

Town of Pomfret,

 
  Respondent January 14, 2009
       

 

The above-captioned matter was heard as a contested case on June 4, 2008, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  The complaint was consolidated for hearing with Docket #FIC 2008-092, Chuck Boster, Lt. Col. Paul Hennen, and Ford Fay v. Chairman, Planning and Zoning Commission, Town of Pomfret; Planning and Zoning Commission, Town of Pomfret; and First Selectman, Town of Pomfret.

 

            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 of complaint filed January 28, 2008, the complainant appealed to the Commission, alleging that the respondent failed to provide a copy of a public record at the time it was requested.

3.  It is found that the respondent held meetings on January 9 and January 15, 2008, at which times it discussed a four-page draft memorandum from the town planner entitled “Home Occupations Retail Sales.”  The respondent discussed a January 8, 2008 draft at the January 9 meeting, and a January 15, 2008 draft at the January 15 meeting.  Additionally, the respondents discussed a letter dated January 9, 2008 from town counsel to the town planner, regarding the proposed zoning amendments.

4.  It is found that the draft memorandum discussed proposed changes to the town’s zoning regulations.

5.  It is found that the complainant asked for a copy of the draft memorandum at each meeting, so that he could follow the discussion, as well as the January 9, 2008 letter from town counsel.

6.  It is found that, at the January 9, 2008 meeting, extra copies of the draft memorandum were available on the table around which the respondent was conducting its discussion.

7.  It is also found that, at both meetings, the respondent had available to it a running copying machine in the building in which the meeting was being conducted, and that a copy of the requested records readily could have been made.

8.  It is found that the respondent nonetheless declined to provide a copy of the draft memorandum to the complainant, on various grounds asserted at the time of that request.  First, the respondent asserted that it had three or four days to provide copies of public records, pursuant to its own rules and pursuant to the Freedom of Information Act.  Second, the respondent asserted that copies were only available from the town clerk during regular office or business hours.  Finally, the respondent asserted that the draft memorandum was subject to change, and therefore could be misused by the public. 

9.  It is found that the requested records were provided to the complainant when he appeared several days later at the office of the town clerk and requested it again.  The sole question presented, therefore, is whether the respondent’s failure to provide the requested records at the meeting at which they were requested violated the promptness requirements of the FOI Act, as set forth below.

 

10.  Section 1-200(5), G.S., provides:

 

“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.

 

11.  Section 1-210(a), G.S., 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, (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….   

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

13.  It is concluded that the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

14.  The complainant contends that the respondent failed to provide the record promptly under the circumstances because he needed to read the documents then and there in order to follow the respondent’s discussion, and because additional copies were either readily available or readily could have been made.

 

15. The respondent now contends that it was not required to provide the requested records at the meetings because the complainant made no written request for them, and because the meetings were not conducted during regular office or business hours.

16.  With respect to the respondent’s argument that the complainant failed to make a written request for the records, it is found that the complainant indeed made no such written request, and that 1-212(a), G.S., provides that an agency may require a request for public records to be in writing.

17.  However, the Commission has previously concluded that, where an agency did not require a written request at the time of the request for copies, and has declined to provide the copy on other grounds, the agency may not subsequently, at a hearing on a complaint, raise the absence of a written request as a defense to its failure to promptly provide a copy.  See, e.g., Docket #FIC 2000-186, Ward v. Secretary of the State (agency waived its right to require a written request by failing to ask for one at the time of the oral request).  Compare, Docket #FIC 1998-339, Rachele v. Windsor Locks (agency may require written request at the time of an oral request).

18.  It is found that the respondent at no time during its meetings indicated that it was declining the complainant’s request because he had failed to reduce his request to writing, or that it would provide the records if the complainant did so.

19.  It is also found, by reasonable inference from the facts on the record, that the complainant would have reduced his request to writing if required to do so at the time of the request.

20.  It is therefore concluded that the lack of a written request by the complainant is not a valid defense to the respondent’s failure to provide a copy of the records, under the facts and circumstances of this case.

21.  With respect to the respondent’s argument that the request was not made during regular office or business hours, it is concluded that nothing in 1-212(a), G.S., limits an agency’s obligation to provide copies of records strictly to regular office or business hours.  See, e.g., Docket #1997-420, Courant v. Hartford Public Schools; and Docket #1995-124, New London Day v. North Stonington Board of Education (violations of promptness requirement where copies of documents not provided at the meetings at which they were requested).

22.  It is found that the respondent’s failure to provide copies when requested, at the meetings at which the draft memorandum was discussed, was actually based on the respondent’s policy that documents subject to revision need not be disclosed at the meeting at which they are discussed, that the respondent has three or four days to respond to requests for copies, regardless of the circumstances, and that draft documents might be misused or misunderstood by the public. 

23.  All of the considerations described in paragraph 22, above, go to the issue of what constitutes “prompt” provision of copies of records requested during an agency meeting.

24.  With respect to that portion of the respondent’s position that relies on the status of the memorandum as a draft, it is found that the respondent does not claim that the draft memorandum was exempt from disclosure as a preliminary draft or note within the meaning of 1-210(b)(1), G.S.

25.  It is concluded that the fact that a document may be a draft subject to revision, or may be misunderstood, are not permissible factors in delaying prompt access to public records.

 

26.  With respect to that portion of the respondent’s position that asserts that an agency has, in all circumstances, four days to reply to a request for copies of public records, it is concluded that no such rule exists.  See, e.g., Docket #2006-429, Lucy DiRocco v. Town of New Fairfield, affirmed Docket No. CV 07-4015768-S, Town of New Fairfield v. FOIC, Superior Court, J.D. of New Britain, Memorandum of Decision dated November 7, 2008 (Levine, J.T.R.)

 

27.  With respect to the general question of promptness, the meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

28.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.           

 

29.  It is found that only about eight pages were requested; that a copy of the draft memorandum and the letter that commented on it was important to the complainant in order to follow the respondent’s discussion; that copies of the draft memorandum were either immediately available or easily made; that at least one individual (the town planner) was available to make copies, and offered to do so; and that the respondent offered no evidence that it was under time constraints to complete other work before providing the copies.

 

30.  It is concluded that the respondent violated 1-212(a), G.S., by failing to provide a copy of the requested records at the times they were requested.

 

 

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 requirements of 1-212(a), G.S., as articulated in this decision.

 

 

 Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2009.

 

 

________________________________

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:

 

Ford Fay

113 Wolf Den Road

Pomfret, CT 06259

 

Planning and Zoning Commission,

Town of Pomfret

c/o Michael A. Zizka, Esq.

Murtha Cullina LLP

CityPlace I – 185 Asylum Street

Hartford, CT 06103-3469

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-060/FD/paj/1/21/2009