FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 29, 2009, and was continued to October 13, 2009, at which times 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 January 6, 2010 in the above captioned matter.  The Commission considered such report at its special meeting of February 16, 2010.  At such time, the complainant requested that the Commission reopen the hearing so that evidence could be entered to clarify his request with respect to records described in paragraphs 3.c., 3.g., and 5, below.  The Commission, at such meeting, voted to reopen the hearing in this matter.  A hearing on remand was conducted on March 10, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony 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 dated and filed with the Commission on May 20, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to provide the complainant with the records described in paragraphs 3 and 5, below.

 

3.  It is found that by letter dated March 2, 2009, the complainant requested “to review and or copy the following information:”

 

a.       “Time sheet records for Mr. Celestino Jimenez since fiscal year 2003 – 2004 until his last day of work at the Office of Human Relations;”

b.      “Time Sheet records for Ms. Kimberly Taylor since fiscal year 2003 – 2004 until January 2009;”

c.       “Records (excluding tax information) of all companies that have received provisional M/WBE certification since fiscal year 2004 – 2005 to the present;”

d.      “Records of all Carlos Costa's companies certified as Minority Businesses Enterprise;”

e.       “Signed letters to USA Contractors regarding their MBE compliance or lack of compliance;”

f.       “Signatory authorization forms for all present and former employees of the Office of Human Relations during Ms. Ruiz tenure;”

g.      “MBE or WBE certificates (including recertifications) issued from January 2005 to December 2005;”

h.      “All records for projects F97-10R, MAT Parking Garage Structural Repairs, E00-09, Trinity College Roadway Improvements/Park Street Enhancements, I-B3S06-01, Park Street Public Safety Project, and F97-04A, Phase II Additions and Renovations to Hartford Central Library;”

i.        “Office of Human Relations' personnel records for Edward Lazú, Celestino Jimenez, Kimberly Taylor and Lillian L Ruiz;” and

j.        All narratives for the following projects:

 

	Contract No.	Contract Title
i.	BOE05-1	Improvements to 19 Schools – Quirk
ii.	E00-09	Trinity College Roadway Improvements/Park Street Enhancements
iii.	E01-07-1	Main Street Streetscape
iv.	E04-02	Riverwalk North Project
v.	E05-01R	Curb, Sidewalk and Miscellaneous Construction
vi.	E05-05	Elizabeth Park Pedestrian & Vehicular Improvements
vii.	F02-18A	Dillon Stadium Site Improvement
viii.	F03-05	Roof Replacement & Miscellaneous HVAC Improvements
ix.	F03-09A	Firehouse Improvement
x.	F04-01	Hartford Transitional Learning Center Window and Door Replacement
xi.	F04-02	Fire Department Emergency Generators
xii.	F05-08	Preservation to Burn Building
xiii.	F06-12	Blue Hills Recreation Center Office
xiv.	F97-04A	Phase II Additions and Renovations to Hartford Central Library
xv.	F97-19B	Additions and Renovations to Goodwin Memorial Branch Library
xvi.	HDS06-01	Park Street Public Safety Project
xvii.	HFAC03-09	1840 Park Street & 5 South Whitney
xviii.	HFAC03-10	1429 Park Street
xix.	HFAC04-03	517-523 Park Street
xx.	HFAC04-04	426-432 Park Street
xxi.	HOME05-02	Brackett Park Housing
xxii.	HOME05-04	Zion Street Mutual Housing
xxiii.	HSBC04-01	Floor Tile Asbestos Abatement and Replacement (M.L. King)
xxiv.	HSBC04-02	Bulkeley High School Water Chiller Replacement
xxv.	RA00-04	Park/Squire/Wolcott St. Project
xxvi.	RA03-01	John Street Project
xxvii.	RA04-01	901-903 and 915-945 Main Street

 

            4.  It is found that, by letter dated March 5, 2009, the respondents replied to the complainant’s March 2, 2009 letter described in paragraph 3, above, stating that the complainant seeks “to ‘review and/or copy’ many thousands of pages of documents, some of which go back many years.”  The respondents also stated that “[a]ccumulating these documents and having regard for protected or nondisclosable information contained” therein, will “require an understaffed Office of Human Relations significant time and effort.”  The respondents further stated that the process “will require a reasonable period of time to accumulate the disclosable documents,” after which, the respondents would notify the complainant when the documents were available for his review.

 

            5.  It is found that, by letter dated March 17, 2009, the complainant made a subsequent request to the respondents’ Chief Information Officer (hereinafter “CIO”) for electronic copies of the following information:

 

a.       “[A]ll … emails sent and received by the Director of Human Relations, Lillian I. Ruiz from January 2004 to December 2006 and January 2008 to December 2008;”

b.      “all  … emails sent and received, under [the complainant’s] email account, as a former City Employee, since January 2004 up to [the complainant’s] last day of work November 2008;” and

c.       “the telephone records received and sent from Ms. Lillian I. Ruiz city private line and city cellular number from 01-01-2004 to 12-31-2006.”

 

(The records in paragraphs 3 and 5, above, are hereinafter “the requested records”).  The complainant enclosed with such letter, four new CD-R computer storage disks.  The complainant requested that electronic copies of the records described in paragraph 5, above, be copied to the four CD-R disks in Portable Document Format (PDF). 

 

            6.  It is found that, by email dated March 18, 2009, the executive assistant to the respondents’ CIO replied to the complainant’s March 17, 2009 letter described in paragraph 5, above, by acknowledging such request and informing the complainant that the respondents would notify him with a timeframe of when the request would be completed.

 

            7.  It is found that, by letter dated April 1, 2009, an information services employee of the respondents notified the complainant that the requested records described in paragraph 5c., above, were compiled and available for the complainant’s review.  It is also found that the complainant requested that such information be mailed to him on the CD-R disk previously provided to the respondents.

 

            8.  It is found that several weeks after receiving the April 1, 2009 letter from the respondents’ information services employee, the complainant was contacted via telephone by the executive assistant to the respondents’ CIO and informed that all information requests go through the respondents’ Corporation Counsel (hereinafter “Corporation Counsel”) for review of records requests prior to public disclosure.  The complainant was also informed that the records described in paragraph 5c., above, were forwarded to the Corporation Counsel’s office for review.

 

            9.  It is found that, by letter dated April 20, 2009, the complainant informed Corporation Counsel that “[w]ith the exception of [Corporation Counsel’s March 5, 2009] letter, no further communication has been received [by the complainant from the respondents] about [his March 2, 2009 FOI] request.”  The complainant also included with such letter, a blank CD-R, for electronic copies of the records described in paragraph 3.j., above.

 

            10.  It is found that, by email dated June 11, 2009, Corporation Counsel informed the complainant that a “substantial amount” of the records described in paragraph 5, above, were in the Corporation Counsel’s possession and available for inspection.  The Corporation Counsel also informed the complainant that thousands of emails were available for the complainant’s review; however, portions of such emails may be subject to redactions as containing “lawyer/client privilege” or “personal information.”  The Corporation Counsel further informed the complainant that portions of the requested records were available electronically, but some records were available in hard copy, resulting from the redaction process.

 

            11.  It is found that on July 22, 2009, Corporation Counsel informed the complainant that all of the requested records were available in the Corporation Counsel’s office for the complainant’s review.

 

            12.  It is also found that, at the end of July 2009 and subsequent to the Corporation Counsel’s July 22, 2009 notification, the complainant reviewed the records described in paragraph 11, above, and determined that such records only included emails from the period of 2004 and did not contain the remaining records described in paragraphs 3 and 5, above.

 

13.  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.

 

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

 

            15.  Section 1-211(a), G.S., provides in relevant part:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.

 

            16.  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 . . . .”

 

17.  It is found that to the extent the respondents maintain the requested records, such records are public records within the meaning of §§1-200(5), 1-210(a), 1-211(a), and 1-212(a), G.S.

 

18.  At the September 29, 2009 hearing on this matter, the respondents maintained that compiling, reviewing, and redacting the requested records required a considerable amount of time.  Both Corporation Counsel and the complainant agree that Corporation Counsel has cooperated with the complainant to provide him with all of the requested records.  Corporation Counsel also stated that his hospitalization, limited office staffing and the voluminous nature of the complainant’s requests, impacted the respondents’ ability to compile the requested records for the complainant’s review.  Corporation Counsel further stated that a large amount of records have been made available since the complainant’s July 2009 review described in paragraph 12, above.  Consequently, he contended that the respondents did not fail to comply with the complainant’s requests and that any delay was reasonable under the circumstances.  In addition, Corporation Counsel requested a continuance of the September 29, 2009 hearing on this matter, which was granted, in light of the failure of the respondents’ outside counsel to appear for such hearing, and in order for the respondents to introduce testimony of a witness with specific knowledge about the requested records.  Corporation Counsel also agreed to make arrangements with the complainant to inspect all of the records, which Corporation Counsel claimed were then available for review at his office.

 

19.  At the September 29, 2009 hearing on this matter, the complainant contended that for over six months the respondents failed to provide him with all of the requested records.  The complainant also contended that he has had numerous visits to and discussions with the respondents’ staff to clarify his requests, but the respondents still failed to provide the remaining requested records.  The complainant consequently contended that the respondents did not promptly comply with his requests.  However, the complainant also conceded that he had not reviewed all of the records then available for review at the Corporation Counsel’s office at the time of the September 29, 2009 hearing.  As a result, the parties agreed to make arrangements for the complainant to inspect the requested records prior to the October 13, 2009 continued hearing on this matter.

 

20.  It is found that between the September 29, 2009 and the October 13, 2009 hearings on this matter, the complainant reviewed records at the respondents’ office.

 

21.  At the October 13, 2009 hearing on this matter, the complainant informed the hearing officer that the respondents provided him with access to and copies of the requested records except for items 3 and 7, described in paragraphs 3.c. and 3.g., respectively, above, and some of the emails described in paragraph 5, above.  The complainant claimed that, contrary to the contentions of the respondent Director of Human Relations, the records described in paragraphs 3.c. and 3.g., above, exist in the M/WBE database system and can be queried by certification status (e.g., provisional) to produce reports identifying specific company information that can be used to retrieve related physical records.  The complainant further claimed that he had first-hand knowledge that the M/WBE database system is capable of querying company certification information by certification status because he participated in meetings about upgrading the M/WBE database system, which he worked with during his employment with the respondents.  In addition, the complainant claimed that, while he received emails from the year 2004, he did not believe that the emails provided to him by the respondents for the subsequent years are all of the responsive emails described in paragraph 5, above.

 

22.  The respondents contended that they provided the complainant with all of the responsive records.  As to the specific records described in paragraphs 3.c. and 3.g., above, the respondents claimed that the M/WBE database system can query company certification information by certification status; however, the M/WBE database is unable to generate such information electronically, therefore the respondents provided the complainant with M/WBE database information, in a manner the respondents claimed their database system was capable of generating such information.  The respondents also claimed that the information services department retrieved, compiled, and provided corporation counsel with all of the requested emails described in paragraph 5, above. 

 

23.  By order dated October 16, 2009, the hearing officer ordered the respondents to submit an affidavit of Eric Jackson, Chief Information Officer, for the City of Hartford.  Such order required the respondents to provide the following specific information:

 

(a) “[W]hether the City of Hartford’s ‘MWBE’ database system can query, by certification status, company certification information;”

 

(b) “[W]hether and in what manner, was certification information provided to the complainant, Edward Lazú, by the City of Hartford, in response to items 3 and 7 identified in Mr. Lazú’s March 2, 2009 request letter to the respondents (Exhibit A);” and

 

(c) “[I]nformation as to whether the City of Hartford has provided Mr. Lazú with all of the emails requested in his March 17, 2009 letter to the respondents (Exhibit E).”

 

24.  After the October 13, 2009 hearing on this matter and by motion filed on October 19, 2009, the respondents moved to keep the record open in this matter.  Such motion was subsequently denied by the hearing officer on October 20, 2009.

 

25.  In response to the order to submit affidavit, described in paragraph 23, above, the respondents submitted the following records on October 30, 2009 (Respondent’s After-filed Exhibit 4):

 

(a)    “Mr. Eric Jackson’s affidavit;”

(b)   “Mr. Geoffrey Brayton’s Affidavit (he is an MHIS employee);” and

(c)    “Affidavit of Kimberly Taylor an OHR employee knowledgeable of what MHIS did and of the OHR database.”

 

26.  With respect to the records described in paragraphs 3.c., 3.g., and 5, above, Eric Jackson, Chief Information Officer for the City of Hartford, attested in his sworn affidavit that although there was approval by the City’s Technology Steering Council to upgrade the M/WBE computer systems such that it could accommodate Mr. Lazú’s March 2, 2009 FOI request, funding for the upgrade was never approved by the City Council, therefore the identified upgrade program was never purchased and installed.  Mr. Jackson also attested that although the M/WBE database system can search and retrieve company certification information by certification status, such information cannot be generated electronically by the existing Microsoft Access database system currently used by the Office of Human Relations.  Mr. Jackson further attested that an employee of his department provided Corporation Counsel with a disc containing “[a]ll of the many thousands of emails” requested in Mr. Lazú’s March 17, 2009 FOI request.  Mr. Jackson attested, however, that he had no knowledge as to what records were provided to Mr. Lazú by the Office of Human Relations or Corporation Counsel’s office. 

 

27.  Geoffrey Brayton of the respondents’ information services department attested in his affidavit that the respondents’ Office of Human Relations has a Microsoft Access database that can search and retrieve company certification information by certification status.  Mr. Brayton also attested that such retrieved information could not be provided electronically.  Mr. Brayton attached Microsoft Excel spreadsheet hard copies of the information he exported from the respondents’ Microsoft Access database containing M/WBE records and attached such spreadsheets to his affidavit.

 

28.  Kimberly Taylor, an employee who worked for the complainant during his employ at the Office of Human Relations, and who had personal knowledge about the M/WBE database information at issue in this matter, attested in her sworn affidavit that although there was “planning for and the creation or construction of a WEB-based system for the [Office of Human Relations] to accommodate M/WBE and Small Contractors…no program was completed....”  Ms. Taylor also stated that there is no “Web-based program live at OHR that would enable [herself] or any person in the office to pull up the provisional certification documents or the M/WBE certificates Mr. Lazú seeks by his March 2, 2009 FOI request.”  She stated, however, that if the certification documents exist, they are in over “900 files (400 active)” which make up the Office of Human Relations’ office caseload, and that the work to physically locate such files, with limited staffing, would be an incredible burden.

 

            29.  It is found that at the October 13, 2009 hearing on this matter, the complainant miscommunicated to the hearing officer and the respondents the location of the records he was seeking related to his requests described in paragraphs 3.c. and 3.g., above.

 

            30.  Consequently, it is found that, on March 9, 2010, the respondents permitted the complainant to search the respondents’ M/WBE database and copy records responsive to his requests described in paragraphs 3.c. and 3.g., above.

 

31.  It is found that, as of March 10, 2010, the respondents made available or provided the complainant with all of the requested records described in paragraph 3.

 

32.  At the March 10, 2010 hearing on this matter, the complainant contended, that he has not received the remaining email records, described in paragraph 5, above.

 

33.  The respondents contended that they provided the complainant with access to or copies of all responsive email records provided to them by their information services department.  The respondents agreed at the March 10, 2010 hearing on this matter to have their information services department diligently conduct another search and retrieval for any remaining emails responsive to the complainant’s request described in paragraph 5, above.  The respondents also agreed that once Corporation Counsel obtains and reviews any additional emails retrieved by their information services department, they will provide the complainant with access to or copies of such emails by May 31, 2010.

 

34.  It is found that the respondents and the complainant orally entered into the agreement described in paragraph 33, above.

 

35.  It is found that the respondents attempted to comply promptly with the complainant’s requests, in light of the volume of requested records, limited staffing, criminal investigations, and other exigent circumstances impacting the respondents’ ability to comply with such requests.

 

36.  Based upon the facts and circumstances of this case, it is therefore concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., as alleged in the complaint.

 

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 April 14, 2010.

 

 

 

____________________________

Petrea A. Jones

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:

 

Edward Lazú

658 Broadview Terrace

Hartford, CT 06106

 

Director, Office of Human Relations,

City of Hartford; and City of Hartford

c/o John Rose, Jr., Esq.

Corporation Counsel

550 Main Street

Hartford, CT 06103

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-241FD/paj/4/19/2010