FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Jeffrey T. Kriete,

 
  Complainant  
  against   Docket #FIC 2009-547

Joan Angelini, Town Clerk,

Town of Westbrook,

 
  Respondent May 26, 2010
       

 

The above-captioned matter was heard as a contested case on November 30, 2009, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. The hearing officer issued a report dated December 17, 2009, which the Commission remanded to him at its January 13, 2010 meeting.

 

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)(A), G.S.

 

2.  By letter dated September 15, 2009 and filed with the Commission on September 18, 2009, the complainant appealed to the Commission, alleging that the respondent:

 

 “requires all citizens seeking to view any documents in the Westbrook Town Vault to identify themselves by fill [sic] out a visitors log sheet that requires their name, items to be viewed, time of entry and exit. The log is left in plain view of any who enter the office. In addition the door to the vault area is kept permanently closed to enforce the limiting of public access to public document viewing.”

 

The complainant stated that this practice is a violation of the Freedom of Information Act (“FOIA”), and requested that civil penalties be assessed against the respondent.

 

3.  Section 1-200(5), G.S., states:

 

“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.

 

4.  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 (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. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.  Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place…. (emphasis added)

 

5.  It is concluded that the records maintained in the vault in respondent’s office are “public records” within the meaning of 1-200(5) and 1-210(a), G.S.

 

            6.  It is found that the relevant physical arrangements of the respondent’s office are as follows:

 

a)      First of all, there is a divider, sometimes referred to as a “Dutch door”, which is waist high that connects to a counter on one side and a wall on the other side. The divider has a handle for opening and is never locked. Upon entering the respondent’s office, a person must pass through the divider in order to enter the vault which contains many public records. The divider has been in place since the construction of the building some years ago; and

 

b)      Approximately one year prior to the complaint, the respondent placed on the counter, next to the divider, a sign that reads: “please sign in for vault entry”. The respondent also placed next to the sign a clipboard with sign-in sheets, which include areas to enter names, dates, times, and reasons for entering the vault. This sign-in sheet arrangement was instituted immediately following an incident where minutes of the town Planning Commission, concerning a controversial decision, were stolen from the respondent’s office. The town police investigated the matter, and filed a report, but could not identify the thief. The records in this upper level vault, that is open to public inspection, are copies of records on file. A second, lower level of the vault contains originals of the same records.

 

7.  It is found that the practices and procedures in connection with the physical arrangements described at paragraph 6, above, are as follows:

 

a)      Basically, the sign-in system is not presented as voluntary, but, in fact, is voluntary. Many visitors do not sign in when they enter the vault, and some visitors have signed in as “Mickey Mouse” or as “Donald Duck”. The respondent and her staff have never attempted to block entry through the divider or to the vault because a visitor declined to sign-in. Despite the sign-in system, sign-in is not a pre-condition for individuals to inspect records; and

 

b)      If visitors to the vault elect not to sign in, the respondent’s staff attempts to maintain a record of visitors who are known to them.   

   

8.  It is found that during the one year period and at all other times, the complainant was never denied access to the vault or required to sign in as a precondition to inspecting records in the vault.

 

9.  It is also found, however, that even a voluntary, “soft” sign-in system, as described at paragraphs 6 and 7, above, has a chilling effect on the right of persons to inspect records anonymously. Members of the public have no way of knowing, without asking, that the sign-in procedure is not a precondition to inspecting records in the vault.     

 

10.  It is further found that a sign-in system does little to prevent document theft. A person intent on stealing public records is unlikely to sign in using his or her true identity. Moreover, the fact that a record is missing may not be discovered for some time following a theft. Because the date of a theft is likely to be unknown, a large number of names would probably have to be investigated in any effort to identify a thief.

 

11.  The Commission takes administrative notice of Raised Bill No. 5703, February Session, 2002 (LCO No. 2307), An Act Concerning the Security of Records Held by Town Clerks. This proposed bill authorized town clerks to request and to log the name of any individual who accesses a storage area that contains original records. The Joint Committee on Government Administration and Elections held a public hearing on Raised Bill No. 5703 and then failed to favorably report the bill out of its Committee. In this manner, the General Assembly specifically considered and determined not to enact legislation authorizing a sign-in system for inspecting public records.

 

12.  Based on the findings at paragraphs 9 and 10, above, and the legislative history of Raised Bill No. 5703 in the February Session of the 2002 General Assembly, discussed at paragraph 11, above, it is concluded that the respondent violated 1-210(a), G.S. The sign-in system constitutes a rule that conflicts with, diminishes and curtails the rights granted by 1-210(a), G.S.

 

13With respect to the complainant’s request for the imposition of a civil penalty, 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.

 

14.  Based on the findings at paragraphs 6, 7, and 8, above, the Commission finds that that there was not a violation without reasonable grounds of the FOIA. Therefore, the Commission does not have discretion to impose a civil penalty.

 

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

 

1.  The respondent shall discontinue immediately all use of any sign-in system (including both the sign placed on the counter and the sign-in sheets). The respondent shall not, in any manner, ask persons to identify themselves prior to the inspection of public records, in the vault or elsewhere.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 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:

 

Jeffrey T. Kriete

342 North Grove Beach Road

Westbrook, CT 06498

 

Joan Angelini, Town Clerk,

Town of Westbrook

c/o John S. Bennet, Esq.

Gould, Larson, Bennet, Wells & McDonnell, P.C.

35 Plains Road

PO Box 959

Essex, CT 06426

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-547FD/paj/6/2/2010