FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Karen Murphy,  
  Complainant  
  against   Docket #FIC 2008-468
Office of Administration, City of Stamford;
Office of Operations, City of Stamford; and
Board of Education, Stamford Public Schools,
 
  Respondents July 8, 2009
       

 

The above-captioned matter was heard on October 29, 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 was issued on February 4, 2009.  The Commission considered such report at its regular meeting of March 11, 2009.   At such time, the Commission remanded the matter to the hearing officer to take further testimony.  At its regular meeting of April 22, 2009, the Commission unanimously voted to designate Commissioner O’Connor as hearing officer in this matter.  A remanded hearing was conducted on April 30, 2009, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, an exhibit, and argument on the complaint. 

 

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 June 19, 2008, the complainant made the following request to the respondents:

 

a.       access to any information held on a computer or in print format that relates to the cost in Fiscal Years 05-06, 06-07 and 07-08 for the City or the Board of Education to maintain each of its natural turf fields, including specific line item costs for each field, and in particular the detailed cost for West Beach Park, Westhill High School and Lionel Park;

 

b.      access to any information held on a computer or in print format that relates to the cost in Fiscal Years 05-06, 06-07 and 07-08 for the City or the Board of Education to maintain its existing tire crumb turf fields, including specific line item costs for each field;

 

c.       access to the manufacturer's maintenance and use instructions or similar documents that was [sic] recommended for the City or the Board of Education to follow in order to maintain its existing tire crumb turf fields;

 

d.      access to any maintenance and use instructions or similar documents that the City or the Board of Education follows in order to maintain its existing tire crumb turf fields;

 

e.       access to any information held on a computer or in print format that relates to any warranty, guarantee, or maintenance and use instructions provided in connection with installation of the four tire crumb turf fields pursuant to the DeRosa Contract;

 

f.       if the City or the Board of Education outsources any of the work to maintain any of its fields, access to any information held on a computer or in print format that provides the terms of the agreement/contract;

 

g.      access to any information held on a computer or in print format that relates to any costs the City is incurring in providing natural or tire crumb turf field maintenance to the Board of Education;

 

h.      access to any information held on a computer or in print format that shows the City's or the Board of Education's maintenance activities and maintenance schedule for each of its existing fields;

 

i.        access to any information held on a computer or in print format relied upon by the City to analyze the costs of installing and maintaining natural turf versus synthetic turf athletic fields for West Beach Park, Westhill High School and Lionel Park;

 

j.        access to any internal reports or consultant reports relied upon by the City or the Board of Education in its decision to select synthetic turf over natural turf field surfaces;

 

k.      access to any information held on a computer or in print format that relates to the recent $88 million bond offering and the June 2008 refunding;

 

l.        access to any information held on a computer or in print format that shows the mill rate calculations for Fiscal Year 08-09, including the underlying formulas and financial and other details that support the mill rate computations; and

 

m.    access to any information held on a computer or in print format that shows the most current Rainy Day fund balance.

 

3.      By letter dated July 11, 2008 and filed on July 14, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with her June 19, 2008 records request. 

 

4.     Section 1-200(5), G.S., provides in relevant part that:

 

“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.

 

5.      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 inspect such records promptly during regular office or business hours. . . [and] receive a copy of such records in accordance with section 1-212. 

 

6.      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 . . . .”

 

7.      It is found that, to the extent such records exist, the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that the complainant was provided with records responsive to her requests described in paragraphs 2.c, 2.d, 2.e, 2.f, 2.i, 2.k, 2.l, and 2.m, above.

 

9.      It is found, however, that the complainant was not provided with any records responsive to her requests described in paragraphs 2.a, 2.b, 2.g, or 2.j, above, because no such records exist.

 

10.   It is found that the respondents recently discovered records responsive to the complainant’s request described in paragraph 2.h, above, and have agreed to provide such records to the complainant.

 

11.     With respect to the complainant’s request for records concerning the cost to the City or the Board of Education to maintain each of its natural turf fields, described in paragraph 2.a, above, it is found that no records exist.  It is found that none of the records in the City’s possession pertaining to cost of maintenance of fields allocate costs by individual field, or by type of field (natural grass or artificial turf).  It is found that the City’s Director of Operations and the Superintendent of Parks and Recreation checked the city’s budget book and the city’s computerized budget system to confirm that maintenance entries are aggregate numbers, as opposed to field by field numbers.  It is further found that the officials reviewed invoices for goods and services relating to field maintenance, and confirmed that the City does not purchase goods or services on a field by field basis.  It is found that labor costs, in the form of payroll records, do not indicate how much time any given employee spends working on any particular field.   It is found that the Board of Education also does not maintain records on a field-by-field basis or by type of field.  It is further found that supplies and labor are also allocated in “bulk.”

 

12.     With respect to the complainant’s request for records concerning costs to maintain existing tire crumb fields, described in paragraph 2.b, above, it is found that no records exist.  It is found that on the date of the complainant’s request, the City did not have any tire crumb fields.  It is found that the Board of Education did have some tire crumb fields, but they were in the early stages of their life cycles and no money was spent on maintenance for any of those fields during the fiscal years specified by the complainant.

 

13.     With respect to the complainant’s request for records concerning the manufacturer’s maintenance and use instructions that were recommended for maintenance of existing tire crumb turf fields, described in paragraph 2.c, above, it is found that the City provided records responsive to such request on July 14, 2008.  It is found that the Board of Education provided records responsive to such request on July 11, 2008. 

 

14.     With respect to the complainant’s request for records concerning records of maintenance or use instructions that the City or the Board of Education follow to maintain its existing tire crumb turf fields, described in paragraph 2.d, above, it is found that the City Engineer was responsible for overseeing the original installation of the Board of Education’s tire crumb turf fields and for monitoring the fields during their respective warranty periods.  It is found that the City provided all records responsive to the complainant’s request, except for a “Maintenance Checklist,” which was attached to records provided to the complainant that were compiled for a training seminar in 2005 run by the City on how to maintain the tire crumb turf fields.  It is found that the City Engineer, who ran the seminar, searched his office files for the sample checklist and asked the manufacturer to search its files, but that the sample checklist could not be located.  It is found that the checklist was compiled from the information on the records provided to the complainant.

 

15.     With respect to the complainant’s request for records concerning warranty information on the tire crumb turf fields, described in paragraph 2.e, above, it is found that the City Engineer provided such records to the complainant on July 14, 2008.

 

16.     With respect to the complainant’s request for records that provide the terms of contracts concerning outsourcing of maintenance of any fields by the City or the Board of Education, described in paragraph 2.f, above, it is found that on July 14, 2008, the complainant was provided with a copy of the contract between the Board of Education and AFB Construction Management.  It is found that no other field maintenance work is outsourced by the City or the Board of Education.

 

17.     With respect to the complainant’s request for records concerning costs to the City in providing field maintenance to the Board of Education, described in paragraph 2.g, above, it is found that no records exist that are responsive to the request.  It is found that the City does not incur any maintenance costs for any Board of Education fields, because no City funds are used to pay for maintenance of Board of Education fields. 

 

18.     With respect to the complainant’s request for records concerning the City’s or the Board of Education’s maintenance activities and maintenance schedule for each of its existing fields, described in paragraph 2.h, above, it is found that the City’s Superintendent of Parks and Recreation searched his files and asked his foremen whether such records exist.  It is found that his initial search revealed no responsive records.  It is found that the employees who perform field maintenance do so without referring to any written instructions or any schedule of activities to be undertaken.  It is found that tasks -- such as mowing, watering, fertilizing, striping baseball fields -- are undertaken on an as-needed basis, and that foremen give oral direction to the workers, rather than handing them written orders.  It is found that, similarly, there are no records of field maintenance of Board of Education fields. 

 

19.     It is found, however, that in searching again for records responsive to the complainant’s request, described in paragraph 2.h, above, the City’s Superintendent of Parks and Recreation discovered that the tree warden, whose tree crew has in recent years been assisting with field maintenance because of understaffed field maintenance crews, maintained records of the daily work the tree crews performed on the fields.  It is found that these daily logs were recorded on a form titled “daily work order – ball field checklist,” and that approximately 130 such forms were found.  It is found that the tree warden did not submit the forms to the Superintendent and that the Superintendent did not know of their existence until recently.  It is found that the City will provide such records to the complainant.

 

20.     With respect to the complainant’s request for records “relied upon by the City to analyze the costs of installing and maintaining natural turf versus synthetic turf athletic fields,” described in paragraph 2.i, above, it is found that the City provided all responsive records to the complainant on July 14, 2008.  It is found that the City’s Board of Finance asked the City Engineer to report on the financial implications of a switch from natural turf to artificial turf.  It is found that the City Engineer researched the issue, obtained a number of studies by or for vendors of artificial turf field products, but discounted such studies, deciding that such ‘vendor-financed’ studies were not sufficiently objective.  It is found that the Engineer “relied upon” a San Francisco study, which he found to be persuasive and useful because it was not vendor-financed and was created by another municipality.  It is found that the City provided the San Francisco study to the complainant on July 14, 2008, and that the City “relied upon” no other written record to analyze the relative costs of natural versus synthetic turf.

 

21.     With respect to the complainant’s request for records of internal reports or consultant reports relied upon by the City or the Board of Education in deciding to select synthetic turf for three fields, described in paragraph 2.j, above, it is found that neither the City nor the Board of Education maintain any records that are responsive to the request.

 

22.     With respect to the complainant’s request for records concerning the $88 million bond offering and the June 2008 refunding, described in paragraph 2.k, above, it is found that the City provided all responsive records on June 27, 2008, July 7, 2008, July 8, 2008, and July 29, 2008. 

 

23.     Specifically, it is found that the City’s Director of Administration understood the complainant’s request for records of the $88 million bond offering to refer to the bound “book” for the bond issue.  It is found that the Director of Administration’s secretary notified the complainant on Friday, June 27, 2008, that the City had not yet received the bound books from bond counsel.  It is found that at the same time, the secretary e-mailed to the complainant the PDFs of the Official Statements for the bonding, which were maintained in electronic format on her computer. 

 

24.     It is found that by reply e-mail, sent at 5:00 p.m. on the same day, the complainant informed the secretary that she did not need to review the bound books, and wished to review any records associated with the bond issue that were in the Director of Administration’s possession.  It is found that the secretary first read the complainant’s e-mail on Monday, June 30, 2008.

 

25.     It is found that the Director of Administration and corporation counsel asked the City’s bond counsel whether the bond offering documents were sufficiently final to be disclosed.  It is found that bond counsel for the city approved disclosure of the relevant records on July 2, 2008 and sent the records to the City the same day, by Fed Ex.  It is found that the records did not arrive on July 3, 2008.  It is found that some of the documents were maintained electronically by the City, but that the employee whose computer maintained the records in PDF form had left for the holiday weekend by the time the Director of Administration realized that the complete package of records had not been delivered on July 3, 2008 from bond counsel’s office.  It is found that the PDF’s were provided to the complainant electronically on the next business day, July 7, 2008. 

 

26.     With respect to the complainant’s request for records of the June 2008 refunding, it is found that the City provided such records on July 29, 2008, a few days after receiving them from bond counsel.  It is found that such records were not maintained by the City at the time of the complainant’s request.

 

27.     With respect to the complainant’s request for records showing the mill rate calculations, described in paragraph 2.l, above, and request for records concerning the most current Rainy Day fund balance, described in paragraph 2.m, above, it is found that the respondents provided such records to the complainant on July 1, 2008. 

 

28.    With respect to the timeliness of the respondents’ response, the meaning of the word “promptly” is a 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.

 

29.     The advisory opinion describes 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.

 

30.     The respondents claim, credibly, that between the time of the complainant’s request and their responses in late June and early July, they were extraordinarily pressed with matters that required immediate action.  It is found that the Director of Operations was involved in an urgent matter concerning debris falling from a high rise development, the Engineering Department was getting underway with a $50 million construction project, the office was involved in negotiations with a large development in town, and it was the beginning of the summer parks season.  It is found that the Director of Administration, as the City’s Chief Financial Officer, needed to “close” the books on the outgoing fiscal year and to address tax billing issues arising out of a new revaluation of property.   It is further found that the Board of Education’s facilities manager was particularly busy because with the end of the school year, maintenance of the school buildings intensifies, and the heavy use of athletic fields by soccer, baseball and softball leagues strain facilities maintenance personnel even further. 

 

31.     Nevertheless, despite the apparent expansive nature of the complainant’s request, it is found that it was clear to the respondents fairly quickly that they did not maintain records responsive to many of the complainant’s requests.  For instance, it was clear to the respondents that there were no responsive records pertaining to maintenance of natural versus tire crumb turf fields, and that there were no internal reports or consultant reports relied upon by the respondents in deciding whether to select synthetic turf over natural turf field surfaces. 

 

32.     It is found that the respondents notified the complainant on July 11, 2008 that there were no records responsive to some of her requests.  Although the FOI Act does not require a public agency to inform a requester in writing that there are no responsive records (See Docket #FIC 2007-574; Bradshaw Smith v. Elizabeth E. Feser, Superintendent of Schools, Windsor Public Schools.), the Commission observes that better communication by the respondents may have prevented some of the frustration expressed in the complainant’s e-mails.

 

33.     With respect to the records the respondents provided to the complainant, it is found that the respondents disclosed all the records they maintain that are responsive to the complainant’s request.  It is found, however, that many of the records did not require much of a search to produce.  It is found that the maintenance and use instructions request in paragraph 2.c, above; the warranty requested in paragraph 2.e, above; the outsourced field maintenance contract requested in paragraph 2.f, above; and the San Francisco study that the City relied on in analyzing turf, described in paragraph 2.i, above; were all readily available to the respondents at the time of the complainant’s request.

 

34.     It is found that despite their pressing deadlines and demands, the respondents reasonably could have complied earlier with several of the complainant’s requests for records.

 

35.     It is concluded, therefore, that the respondents violated the promptness requirements of the FOI Act with respect to providing the records described in paragraphs 2.c, e, f, i, and m, above.

 

36.     It is also concluded that the respondents violated the promptness requirements of the FOI Act by failing to provide the tree warden’s records in response to the complainant’s request for records described in paragraph 2.h, above.  Nevertheless, the Commission commends the respondents for undertaking a second search for responsive records to this request.

 

37.     The Commission declines to consider the complainant’s request for the imposition of a civil penalty against the respondents, which was made for the first time at the first hearing on this matter.

 

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

 

1.       Forthwith, the respondents shall provide copies of the tree warden’s maintenance records, described in paragraph 19 of the findings of fact, above.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 8, 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:

 

Karen Murphy

68 Saddle Rock Road

Stamford, CT 06902

 

Office of Administration, City of

Stamford; Office of Operations,

City of Stamford; and Board of

Education, Stamford Public Schools

C/o Michael S. Toma, Esq.

Assistant Corporation Counsel

Office of Legal Affairs

888 Washington Boulevard

Stamford, CT 06904

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-468FD/sw/7/9/2009