FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 2008-664|
Superintendent of Schools,
Norwalk Public Schools; and
Norwalk Public Schools,
|Respondents||May 13, 2009|
The above-captioned matter was heard as a contested case on January 21, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the matter was consolidated with Docket #FIC 2008-677; Margaret Bustell v. Superintendent of Schools, Norwalk Public Schools; and Norwalk Public Schools.
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. It is found that, by letter dated August 5, 2008, the complainant sent a request for records to the respondents, in which she sought a copy of the following:
a) Her son’s file, including all billing records to Spectrum Kids and contracts between Norwalk Public Schools and Spectrum Kids; and
b) Documentation related to Stacy Lore’s credentials.
3. It is found that, by letter dated September 8, 2008, the respondents acknowledged the complainant’s request for records. The respondents informed the complainant that her son’s educational records had already been forwarded to her. The respondents further stated that the documentation with regard to Stacy Lore’s credentials would be forwarded to the complainant shortly.
4. By letter dated October 7, 2008 and filed October 9, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with her request for records.
5. 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.
6. 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 . . . (3) receive a copy of such records in accordance with section 1-212.
7. Section 1-212(a)(1), 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.
8. It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are “public records” and must be disclosed promptly in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
9. At the hearing in this case, the complainant testified that Spectrum Kids worked with the respondent school to provide education services to her son. She further testified that Stacy Lore was an individual from Spectrum Kids who was assigned to work directly with her son.
10. The complainant testified that she received all of the records that the respondents maintained, and that the only matter left for the Commission to determine was whether the respondents complied “promptly” with her request.
11. It is found that, on September 8, 2008, the complainant received Spectrum Kids’ billing records with regard to the services Spectrum Kids provided to her son.
12. It is further found that, despite the respondents’ September 8, 2008 representation that the complainant’s son’s educational records had already been forwarded to her, the complainant did not receive these records until September 11, 2008.
13. The complainant testified that, while her original request for Spectrum Kids’ billing records was meant to encompass Spectrum Kids’ billing records regarding services provided to her son, she later decided that she desired a copy of all of Spectrum Kids’ billing records.
14. It is found that, by e-mail correspondence dated August 18, 2008, the complainant clarified her request with regard to Spectrum Kids’ billing records, and informed the respondents that said request should be construed as a request for “all contracts and billing with regard to Spectrum Kids.”
15. It is further found that, by letter dated December 3, 2008, the respondents notified the complainant that it had assembled all of Spectrum Kids’ billing records and that copies of these records were available to her. It is found that, shortly after the respondents’ December 3, 2008 correspondence, the complainant obtained copies of these additional billing records.
16. It is further found that, by letter dated December 3, 2008, the respondents notified the complainant that it did not have in its possession records pertaining to contracts between the Norwalk Public Schools and Spectrum Kids, or records pertaining to Stacy Lore’s credentials.
17. As to the cause for the lapse of time between the complainant’s requests for records and the provision of those records to the complainant, the respondents testified that the delay was due to the respondents trying to locate and assemble the requested records, and that vacations somehow interrupted the process.
18. It is found that the respondents did not provide a sufficient explanation for the almost five week delay between the complainant’s August 5, 2008 request for records and the provision of records to the complainant on September 8, 2008 and September 11, 2008. Additionally, the respondents did not provide a sufficient explanation for the delay between the complainant’s request for all of Spectrum Kids’ billing records on August 18, 2008, and the provision of those records to the complainant on December 3, 2008.
19. Accordingly, it is concluded that the respondents violated the promptness requirements of §§1-210(a) and 1-212(a), G.S.
20. At the hearing, the complainant contended that a civil penalty was warranted in this case because of the length of time it took for her to receive the records she requested and because of the respondents’ failure to promptly ascertain which records it had in its possession and which records it did not. This contention was not raised in the complaint.
21. While it is concluded that the respondents should have been more prompt in providing the records to the complainant, it is concluded that there is an insufficient factual basis in this case upon which to impose a civil penalty against the respondents.
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 §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May l3, 2009.
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:
Superintendent of Schools, Norwalk
Public Schools; and
Norwalk Public Schools
C/o Jason Stanevich, Esq.
and Marsha Moses, Esq.
Berchem, Moses & Devlin, PC
75 Broad Street
Milford, CT 06460
Acting Clerk of the Commission