FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Kimberly Albright Lazzari and

Anthony Lazzari,

 
  Complainants  
  against   Docket #FIC 2009-006
Mayor, Town of Wallingford,  
  Respondent November 18, 2009
       

 

The above-captioned matter was heard as a contested case on May 18, 2009, at which time the complainants and the respondent 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter dated December 29, 2008 and filed with the Commission on January 2, 2009, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying their request for information described in paragraph 3, below.  The complainants requested the imposition of civil penalties against the respondent.

 

3.  It is found that by letter dated December 17, 2009, the complainants requested from the respondent the following information, subsequent to requesting related information from the Wallingford Health Department, Assessor’s Office, and Tax Assessors Office:

 

a.       “[T]he name of the owner(s) of the following Subways:”

                                                                 i.   “Walid Subway, LLC – 844 North Colony Rd. Wallingford, CT. 06492;”

                                                               ii.   “M.N.K. Subway, LLC – 1046 North Colony Rd. Wallingford, CT. 06492;”

b.      [A]ny/all records, files, documents, deeds, certificates, bill of sale, agreements, and papers related to and associated with my request as may be maintained in your files;” and

c.       “[I]nformation as to any transfers or selling of these two businesses owned by Mr. Mohammed Kohsar in the year 2008.”

 

(Hereinafter “the requested records”).

 

            4.  It is found that, by letter dated December 22, 2008, the respondent replied to the complainants’ December 17, 2008 request described in paragraph 3, above, by stating that “[t]he Town of Wallingford is not required to research the ownership of a particular business for [the complainants] or conduct a title search.”  The respondent also attached property cards for two properties he believed were responsive to the complainants’ request described in paragraph 3, above.  The respondent further stated that it was “unaware of any other records relating to” such businesses and advised the complainants to search Connecticut’s Secretary of State’s website for such related information.

 

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., states 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…receive a copy of such records in accordance with section 1-212.

 

7.  Section 1-212(a), G.S., provides in relevant part that “[a]ny 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 the respondent maintains the requested records, such records are public records within the meaning of 1-200(5), 1-210(a), and 1-211(a), G.S.

 

9.  At the hearing on this matter, the complainants contended that the respondent failed to provide them with the names of the owners related to their request described in paragraph 3a., above.  The complainants also contended that the property cards provided to the complainants as an attachment to the respondent’s December 22, 2008 letter described in paragraph 4, above, are not responsive to their requests.  The complainants further contended that such property cards pertain to Walmart, a “completely different entity” that leases an area within its department store, to one of the Subway stores at issue in this matter.  Additionally, the complainants contended that they sent their December 17, 2008 requests to the respondent Mayor because all departments of the Town of Wallingford are accountable to the Mayor’s office.

 

10.  As to the questions asked by the complainants in their request described in paragraph 3a., above, it is concluded that the respondent is not required under the FOI Act to create documents it does not already have, in order to answer the questions asked by the complainants.  The FOI Act gives every person the right to request and access records that exist.  It is therefore, concluded that the respondent did not violate the FOI Act as alleged in the complaint with respect to the questions asked by the complainants.

 

11.  With respect to the complainants’ request as described in paragraphs 3b. and 3c., above, it is found that the respondent has provided the complainants with copies of the records “maintained or kept on file” by the respondent, which records are the only ones existing in the respondent’s files, that are responsive to the complainants’ December 17, 2008 requests for information described in such paragraphs.

 

12.  It is concluded that, pursuant to 1-210(a) and 1-212(a), G.S., the responsibility to provide copies of the requested records to the complainants rests with the individual Town of Wallingford agency that maintains and has custody of any portion of the requested records.  See James A. Lash, First Selectman of the Town of Greenwich, Et Al.  v. Freedom of Information Commission Et Al., 116 Conn. App. 171, 188 (2009) (reversing the trial court’s decision by concluding that “one public agency may not be held responsible for disclosing the public records in the custody of another public agency”).  In addition, the Commission takes administrative notice of the final decision in contested case Chikara v. Governor, State of Connecticut, Docket #FIC 1996-556 (concluding that the responsibility to provide copies of the records rest with the individual agency which maintains and has custody of any portion of the requested records).

 

13.  Accordingly, it is concluded that the respondent did not violate 1-210(a), G.S., with respect to the records described in paragraphs 3b. and 3c., above.

 

14.  After consideration of the entire record in this case, the Commission declines to consider the imposition of civil penalties against the respondent.

 

 

 

 

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

 

1.  The complaint is hereby dismissed.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 18, 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:

 

Kimberly Albright Lazzari and

Anthony Lazzari  

132 Rock Creek Road

New Haven, CT 06515

 

Mayor, Town of Wallingford

C/o Janis M. Small, Esq.

Town Attorney

45 South Main Street

Wallingford, CT 06492

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-006FD/sw/11/23/2009