FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Peter Brovero,  
  Complainant  
  against   Docket #FIC 2009-105

President, Giants Neck Heights Association;

and Giants Neck Heights Association,

 
  Respondents January 13, 2010
       

           

The above-captioned matter was heard as a contested case on May 20, 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 February 25, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for prompt access to public records pertaining to the respondent Association’s business with the security firm ACE Security of Waterford, Connecticut.

 

            3.   It is found that the complainant, by letter dated February 9, 2009, requested that the respondents provide access to and copies (a) of the contract with ACE Security, (2) each of the nightly reports provided by ACE Security to the Giants Neck Heights Association Board of Governors, and (3) all written estimates provided by other security firms.

 

4.  It is found that the respondents provided all the requested records, but did not provide the nightly security reports until May 15, 2009.

 

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: 

 

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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

7.  Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.  It is found that the records described in paragraph 3, above, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

9.  The complainant contends that the security logs were not provided promptly.

 

            10.  It is found that, after receiving the complainant’s request, the respondents obtained the logs from ACE Security, and, after consulting with an attorney and meeting together with the chair of the security committee, decided to assert that the security logs were exempt from disclosure pursuant to 1-210(b)(19), G.S..      

 

11.  Section 1-210(b)(19), G.S., provides in relevant part that disclosure is not required of:

 

Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) (i) by the Commissioner of Public Works, after consultation with the chief executive officer of an executive branch state agency, with respect to records concerning such agency; and (ii) by the Commissioner of Emergency Management and Homeland Security, after consultation with the chief executive officer of a municipal, district or regional agency, with respect to records concerning such agency ….

 

12.  It is found that the respondents had a good faith belief that disclosure of the security logs would permit circumvention of ACE Security’s surveillance of the beach area, which was subject to underage drinking, vandalism, and skate-boarding.

 

13.  It is found that the respondents mistakenly submitted their request for a determination of whether there were reasonable grounds to believe that disclosure may result in a safety risk to the Commissioner of Public Works rather than the Commissioner of Emergency Management and Homeland Security.  Their request was subsequently forwarded to the correct Commissioner.

 

14.  It is found that the respondents withdrew their determination request on May 14, 2009, after deciding not to hire ACE Security for the next season.

 

15.  It is found that the respondents then provided copies of the security logs to the complainant on May 18, 2009.

 

16.  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.

 

17.  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.           

 

18.  It is found that the delay in providing the security logs was due to the respondents’ good faith initial decision to obtain an opinion whether the applicable state commissioner had reasonable grounds to believe that disclosure of the security logs may result in a safety risk.

 

19.  It is concluded that, under the facts and circumstances of this case, the requested security logs were provided promptly.

 

19.  It is therefore concluded that the respondents did not violate the FOI Act as alleged.

 

 

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

 

            1.  The complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 2010.

 

____________________________

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:

 

Peter Brovero  

56 South Beechwood Road

Niantic, CT 06357

 

President, Giants Neck Heights Association;

And Giant Neck Heights Association

P.O. Box 625

Niantic, CT 06357

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-105FD/sw/1/19/2010