FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

Chuck Boster, Lt. Col. Paul Hennen,

and Ford Fay,

 
 
  Complainants  
  against   Docket #FIC 2008-092

Chairman, Planning & Zoning Commission,

Town of Pomfret;

Planning and Zoning Commission,

Town of Pomfret; and

First Selectman, Town of Pomfret,

 
  Respondents January 14, 2009
       

 

The above-captioned matter was heard as a contested case on June 4, 2008, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The complaint was consolidated for hearing with Docket #FIC 2008-060, Ford Fay v. Planning and Zoning Commission, Town of Pomfret.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.  By letter of complaint filed February 6, 2008, the complainants appealed to the Commission, alleging that the respondents failed to provide copies of public records at the time they were requested.

3.  It is found that the respondent Planning and Zoning Commission, with the respondent First Selectman in attendance, 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 respondents 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 both draft memoranda discussed proposed changes to the town’s zoning regulations.

5.  It is found that the complainant Fay asked for a copy of the draft memorandum discussed at each meeting, so that he could follow the discussion, as well as the January 9, 2008 letter from town counsel; and the complainant Boster asked for a copy of any records distributed to the members of the respondent Planning and Zoning Commission at the January 25, 2008 meeting.

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 respondents were conducting their discussion.

7.  It is also found that, at both meetings, the respondents had available to them 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 respondents nonetheless declined to provide a copy of any of the requested records to the complainants during the meeting, on various grounds asserted at the time of that request.  First, the respondents asserted that they had three or four days to provide copies of public records, pursuant to their own rules and pursuant to the Freedom of Information Act.  Second, the respondents asserted that copies were only available from the town clerk during regular office or business hours.  Finally, the respondents asserted that the draft memoranda were subject to change, and therefore could be misused or misunderstood by the public. 

9.  It is found that the requested records were provided to the complainants when they appeared several days later at the office of the town clerk and requested them again.  The sole question presented, therefore, is whether the respondents’ failure to provide the requested records during the meeting at which they was requested violated the promptness requirements of the FOI Act, under the facts and circumstances of this case.

 

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 complainants contend that the respondents failed to provide the records promptly under the circumstances because the complainants needed to read the documents then and there in order to follow the respondents’ discussion, and because additional copies were either readily available or readily could have been made.

 

15. The respondents now contend that they were not required to provide the requested records at the meetings because the complainants made no written request for them, and because the meetings were not conducted during regular office or business hours.

16.  With respect to the respondents’ argument that the complainants failed to make a written request for the records, it is found that the complainants 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 respondents at no time during their meetings indicated that they were declining the complainants’ requests because they had not been reduced to writing, or that they would provide the records if the complainants made such written requests.

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

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

21.  With respect to the respondents’ argument that the requests were 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 respondents’ failure to provide the copies when requested, at the meetings at which the draft memoranda were discussed, was actually based on a policy that asserts that documents subject to revision need not be disclosed at the meeting at which they are discussed, that the respondents have 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 respondents’ position that relies on the status of the memorandum as a draft, it is found that the respondents do 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 respondents’ 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 at each meeting; that copies of the draft memoranda were important to the complainants in order to follow the respondents’ discussion; that copies of the draft memoranda 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 respondents offered no evidence that they were under time constraints to complete other work before providing the copies.

 

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

 

 

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

 

            1.  Henceforth the respondents 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:

 

Chuck Boster

273 Paine Road

Pomfret Center, CT 06259

 

Lt. Col. Paul Hennen

USA Rt. 52 Putnam Road

Pomfret, CT 06258

 

Ford Fay

113 Wolf Den Road

Pomfret, CT 06259

 

Chairman, Planning & Zoning Commission,

Town of Pomfret;

Planning and Zoning Commission,

Town of Pomfret; and

First Selectman, 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/2008-092/FD/paj/1/22/2009