FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 15, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A report of hearing officer, dated October 20, 2008, was issued on December 11, 2008.  At its regular meeting of January 29, 2009, however, the Commission voted to remand the above-captioned matter back to the hearing officer for a second report of hearing officer.

 

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 dated July 25, 2008, the complainant appealed to the Commission, alleging that, on July 18, 2008, the respondents denied him the right to inspect the following records contained in a “correspondence file” maintained by the respondents:  (a) “ZBA’s report,” and (b) “Tom Byrne letter on Cropsey” (the “requested records”).  The complainant further alleged that such denial violated the Freedom of Information (“FOI”) Act.  In addition, the complainant alleged that respondents Putnam, Burgess and Speck had discussed and agreed to withhold such records from him on July 18, 2008, and he therefore seeks civil penalties against them.

 

3.  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.

 

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

 

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 ... or (3) receive a copy of such records in accordance with section 1-212.  (Emphasis added).

 

            5.  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.” 

 

6.  It is found that the respondents maintain the records described in paragraph 2, above, and it is therefore concluded that such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

7.  It is found that the regular business hours of the respondent Planning & Zoning Commission (the “commission”) are from 8:00 am to noon, Monday through Friday. 

 

8.  It is found that, on July 18, 2008, the complainant, who was a member and a former chairman of the commission, visited the office of the respondents, during regular business hours, and asked to view the “correspondence file” for the July 21, 2008 regular meeting of the commission (the “July 21 meeting”).  It is further found that, upon viewing the file, the complainant specifically asked to inspect two documents which were not in the file, but which were listed on the agenda, under “Correspondence”, for the July 21 meeting :  (a) the “ZBA’s report”, and (b) the “Tom Byrne letter on Cropsey”.  It is found that the secretary told the complainant that she did not know where those two documents were, and that “maybe Barbara [Putnam][1] has them.” 

 

9.  It is found that, at approximately 2:30 pm, on July 18, 2008, after regular business hours, the complainant called the office of the respondents, spoke with respondent Speck, and again requested to inspect the records described in paragraph 2, above.  It is found that respondent Speck told the complainant that he would provide him with a copy of the requested records at the July 21 meeting on Monday evening. 

 

            10.  It is found that the respondents provided the complainant with a copy of the records described in paragraph 2, above, at the July 21 meeting on Monday evening.

 

11.  At the hearing in this matter, the complainant testified that the requested records were not provided to him promptly, in violation of the FOI Act.  He further testified he believed that the reason the respondents did not immediately provide him with access to such records is because respondents Putnam, Burgess and  Speck had discussed and agreed among themselves, during a July 17 meeting, not to make such records available to him until the July 21 meeting.  

 

            12.  It is found that on July 17, 2008, the respondents Putnam, Burgess, and Speck met to discuss the matters to be placed on the agenda for the July 21 meeting (the “July 17 meeting”).  It is further found that, at such meeting, each of these individuals had a copy of the records described in paragraph 2, above.  In addition, it is found that, at the July 17 meeting, the respondents also discussed and agreed that due to the “controversy” and “anxiety” about the records described in paragraph 2, above, “the best way to release the information was to have both Matt’s report and the lawyer’s review of it issued at the same time so that the commissioners would have both reports at the same time; and we decided that we would have copies of them ready for the commissioners on the Monday meeting...”   

 

13.  With regard to the complainant’s claim that respondents Putnam, Burgess and Speck agreed to intentionally withhold the records described in paragraph 2, above, from him, it is found that the respondents’ decision, described in paragraph 12, above, constituted an attempt to control the release of the requested records, on terms prescribed by them, and to thereby withhold such records from disclosure until the time of July 21 meeting.  It is further found that such conduct violated the complainant’s right to inspect such records promptly.

           

14.  It is therefore concluded, under the facts and circumstances of this case, that the respondents violated the promptness provisions of the FOI Act.

 

15.  The Commission declines to consider the imposition of a civil penalty in this case.

 

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 provisions of §1-210(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 11, 2009.

 

 

____________________________

S. Wilson

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:

 

John Williams

C/o David F. Sherwood

2230 Main Street

P.O. Box 1420

Glastonbury, CT 06033

 

Barbara Putnam, Chairman,

Planning & Zoning Commission,

Town of Litchfield; William Burgess,

Vice Chairman, Planning & Zoning

Commission, Town of Litchfield;

Matthew Speck, Zoning Enforcement Officer,

Town of Litchfield; and Planning & Zoning

Commission, Town of Litchfield

C/o Steven E. Byrne, Esq.

790 Farmington Avenue, Suite 2B

Farmington, CT 06032

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-497FD/sw/3/17/2009