FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on January 29, 2010, 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 September 14, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply promptly with his request for copies of public records, and by having a policy of forwarding all FOI requests to the respondent Rose, regardless of whether there was any question of whether possible exemptions apply.  The complainant requested the imposition of the maximum civil penalties against the named respondents. 

 

3.  It is found that the complainant, by email dated September 8, 2009 to the respondent Councilman Torres, requested “for review” the following:

 

Any and all monthly reports as defined under Section 5(a)(iii) of the Harford City Charter that have been provided to the Council as required by the Charter.  Please provide these documents for the period from July 1, 2008 to the present.

 

4.  It is found that the respondent Councilman Torres almost immediately caused the request to be forwarded to the respondent Corporation Counsel Rose “[f]or your review and action ….”

 

5.  It is additionally found that Councilman Torres’ administrative assistant, who received the request, was directed by Torres to forward the request to the respondent Rose. 

 

6.  It is additionally found that Torres’ administrative assistant understood that the requested records had been printed, were available online, and were public.

 

7.  It is found that Councilman Torres directed the complainant’s request to be forwarded to Rose because he understood that all FOI requests were to be forwarded to Corporation Counsel, because he believed that he needed Corporation Counsel to determine which records would satisfy the needs of the requester, and because he was unsure of the extent of his personal responsibilities to respond to the request.  It is additionally found that Councilman Torres had no reason to believe that the requested records were exempt from disclosure.

 

8.  It is found that Corporation Counsel Rose in turn forwarded the complainant’s request to the City Finance Department, from which the records had originated.

 

9.  It is found that the requested records were ultimately provided to the complainant on November 24, 2009.

 

10.  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.

 

11.  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. 

 

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

 

13.  It is concluded that the requested records, which could have been provided on the very day they were requested, were not provided promptly.

 

14.  It is therefore concluded that the respondents violated §1-210(a), G.S.

 

15.  With regard to the practice or policy of requiring all FOI requests to be forwarded to the Corporation Counsel’s Office for review, regardless of the nature of the request or the content of the requested records, § 1-210(a), G.S., provides in relevant part: “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.”

 

16. It is found that the practice described in paragraph 15, above, diminishes or curtails the right of prompt access to public records granted by §1-210(a), G.S.

 

17.  It is therefore concluded that the practice described in paragraph 15, above, is void pursuant to §1-210(a), G.S.

 

18.  Because Councilman Torres honestly believed that he was required to forward all FOI requests to Corporation Counsel, and because that policy predated the respondent Rose’s tenure in office, the Commission in its discretion declines to consider the imposition of civil penalties.

 

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

 

            1.  Henceforth the respondents shall strictly comply with the requirements of §1-210(a), G.S.

 

            2. The policy and practice of automatically forwarding all requests for public records to Corporation Counsel for review and action is declared null and void.

 

            3.  Nothing in this decision shall be construed to prohibit or discourage any public agency from seeking the advice of counsel with regard to FOI requests in appropriate circumstances, where legal advice is required.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 25, 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:

 

Kevin Brookman

120 Sigourney Street

Hartford, CT 06105

Calixto Torres, President,

City Council, City of Hartford;

John Rose, Jr., Corporation Counsel,

City of Hartford; and City of Hartford

C/o John Rose, Jr., Esq.

Corporation Counsel

City of Hartford

550 Main Street

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-528FD/sw/8/27/2010