FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 23, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits 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.  By letter of complaint filed December 10, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying prompt access to public records.  The complainant requested the imposition of a civil penalty against the respondent Chief Librarian.

 

3.      It is found that the complainant made a request at the Hartford Public Library on November 24, 2008 to inspect “the file for the search of the position of Assistant Community Librarian.”

 

4.  It is found that the respondent’s receptionist reported the request to Carol Poehnert, the interim business manager, as a request to see “personnel records,” and was told that she didn’t allow people to see personnel records. 

 

5.  It is found that the receptionist asked the complainant to leave his name and telephone number, but that the respondent neither contacted the complainant nor told him that he would not be permitted to inspect the records.

6.  It is found that the respondents maintain a file responsive to the complainant’s request, which contains all applications for the position, a spreadsheet of data, an interview schedule, and interview notes.

 

7.  It is found that the respondents had no objection, as of the date of the hearing on this matter, to making the requested records available for the complainant’s inspection, and pledged to do so.  On his part, the complainant pledged to telephone ahead of his visit to inspect the records.

 

8.  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.

 

9.  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 ….

 

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

 

11.  The complainant maintains that the provision of records to him was not prompt.

 

12.  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.

 

13.  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.           

 

14.  The respondents maintain that their failure to provide the records for inspection was due to a misunderstanding and miscommunication.

 

15.  While it is found that the respondents’ failure to provide the records for inspection may have been due to their own misunderstanding, or their own internal miscommunications, it is also found that the complainant communicated his request clearly, and that the respondents offered no evidence to prove any reason why the requested records could not have been produced for inspection at the time of the complainant’s request.

 

16.  It is concluded that access to the requested records was not provided promptly, and that the respondents thereby violated §1-210(a), G.S.

 

17.  With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S.,  provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

18.  The standard for when a violation is “without reasonable grounds” is analogous to the legal standard “without any substantial justification.”  Connecticut Department of Public Safety v. FOIC, et al., 1997 WL 537117 (Conn. Super.), affirmed, 247 Conn. 341 (1998).  Similarly, the phrase “without reasonable justification” has been construed to mean “entirely unreasonable or without any basis in law or fact.”  Id., quoting Bursinkas v. Department of Social Services, 240 Conn. 141, 155 (1997). 

 

19.  It is therefore concluded that a civil penalty is not warranted by §1-206(b)(2), G.S.

 

 

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

 

            1.  The respondents shall forthwith provide the complainant with access to the requested records, if they have not already done so.

 

2.  Henceforth the respondents shall strictly comply with the promptness requirements contained in §1-210(a), G.S.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 14, 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:

 

Bradshaw Smith 

23 Ludlow Road 

Windsor, CT 06095

 

Louise Blalock, Chief Librarian,

Hartford Public Library,

City of Hartford; and

City of Hartford

C/o Peter A. Janus Esq.

Siegel, O’Connor, O’Donnell & Beck, P. C.

150 Trumbull Street

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-775FD/sw/10/15/2009