FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Arthur Smith,  
  Complainant  
  against   Docket #FIC 2009-668

Chief Audit and Compliance Officer, State

of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics; and

State of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics,

 
  Respondents October 27, 2010
       

 

The above-captioned matter was heard as a contested case on February 11, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the February 11, 2010 hearing, the complainant presented his case-in-chief and, at the end of the complainant’s presentation, the hearing was continued to March 11, 2010.  On March 11, 2010, the complainant and the respondents again appeared, and the respondents presented their case-in-chief. 

 

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.  It is found that, by letter dated October 16, 2009, the complainant sent a request for records to the respondents, in which he sought a copy of the following records:

 

a.       All policies related to the accommodation of student employees with disabilities;

b.      All information related to the internal university tracking system of student employees, including but not limited to dining hall student employees, with disclosed disabilities including but not limited to email correspondence, telephone messages, memoranda, letters and any and all electronic messaging;

c.       All information related to Department of Equity and Diversity training of Dining Hall Services on the accommodation of student employees with disabilities; and

d.      All information related to Dining Hall Services policy or pro-active H1NI procedures to protect dining hall students during the pandemic.

 

3.  It is found that, by letter dated October 16, 2009, the respondents acknowledged the complainant’s request for records, and informed the complainant that they were providing with their acknowledgement all of the non-exempt records which were responsive to the complainant’s October 16, 2009 request and also responsive to a previous request for records that the complainant had made on September 28, 2009.  It is further found that, while the complainant did not file an appeal with this Commission with regard to his September 28, 2009 request, the October 16, 2009 request and the September 28, 2009 request were identical in that they contained the same four requests for records listed in paragraph 2, above.  It is found, however, that the September 28, 2009 request contained one additional request for records (the “September Request”),[1] which was omitted from the October 16, 2009 request (the “October Request”). 

 

4.  By letter dated and filed November 4, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not timely complying with his October Request for records.  In his November 4, 2009 filing, the complainant requested “expedited processing and hearing regarding the failure of the University of Connecticut to comply with the [FOI Act] timeframe in which to comply with requested information.”  By order dated December 18, 2009, the complainant’s request for expedited consideration was denied. 

5.  By letter dated January 6, 2010 and filed January 11, 2010, the complainant filed a request for an administrative hearing on the Commission’s order denying the complainant’s request for expedited consideration.  In addition, the complainant requested that the Commission provide him with “any and all information obtained by the CT FOIA Commission, relevant to case #2009-668” and that the Commission provide the complainant with “the opportunity, pursuant to the CT FOIA, to review all CT FOIA complaints filed against the University of Connecticut during the last five years.”  The Commission takes administrative notice of the fact that, on January 14, 2010, it provided the complainant with the records he requested, created queries in its databases to provide the complainant with access to the information concerning previous matters involving the University of Connecticut, and informed the complainant that the files of the Commission are open for public inspection during normal business hours. 

 

6.  On February 3, 2010, the complainant filed a Motion for In Camera Inspection (the “First Motion”) and a Motion To Accept Complainant’s Exhibits, Sequester Witnesses, Allow Presence of Complainant’s Stenographer and Open Proceeding to the Press (the “Second Motion”).  On February 5, 2010, the respondents filed an Objection to the complainant’s Second Motion and, on February 8, 2010, the complainant filed a Reply to the respondents’ Objection. 

 

7.  By orders dated February 8, 2010, the hearing officer ruled on both of the complainant’s motions.  With regard to the complainant’s First Motion, the hearing officer issued an order indicating that the Motion for In Camera Inspection would be ruled on at the contested case hearing, after the presentation of evidence.  With regard to the complainant’s Second Motion, the undersigned hearing officer ruled as follows:  1) at his own expense, the complainant could bring a stenographer with him to the contested case hearing; 2) the complainant was informed that all hearings at the Commission are open to the public and to members of the press; 3) the complainant’s motion to sequester witnesses was denied; and 4) the complainant’s motion to have exhibits pre-admitted was denied. With regard to the motion to have exhibits pre-admitted, the hearing officer further advised the complainant to bring with him to the contested case hearing two, unmarked copies of all of the records that he planned to offer into evidence, as the admissibility of all records would be determined at such time. 

 

8.  On February 9, 2010, the respondents filed a Motion to Quash and For Protective Order. In their motion, the respondents indicated the complainant had served four individuals at the respondent University—to wit, 1) University of Connecticut President Michael Hogan; 2) University of Connecticut Dining Services Director Dennis Pierce; 3) University of Connecticut student Michael Csere; and 4) University of Connecticut Assistant Director of Compliance/Privacy, Rachel Krinsky-Rudnick; with subpoenas duces tecum, ordering them to appear at the Commission’s February 11, 2010 contested case hearing and to bring certain documents with them.  The respondents indicated in their motion that Ms. Krinsky-Rudnick would be present at the contested case hearing “to describe the coordination of the University’s responses to the Complainant’s FOI Requests.”  The respondents further indicated that Ms. Krinsky-Rudnick would also “be prepared to explain why the applicable exemptions were invoked.” 

 

9.  By order dated February 9, 2010, the undersigned hearing officer granted the respondents’ motion, and set forth the following:  “[i]f, after the presentation of evidence, any witness’ testimony is necessary to deciding the matters at issue in this case, the Commission will ask such witness or witnesses to appear at a continued hearing.”  

 

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 that:

 

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 . . .  (3) receive a copy of such records in accordance with section 1-212.

 

12. Section 1-212(a)(1), G.S., provides in relevant part that:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.


            13. It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are “public records” and must be disclosed promptly in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

14. At the February 11, 2010 contested case hearing, the complainant, who declined to be sworn, represented that he was concerned with the sufficiency of the respondents’ search for records responsive to his October Request.  The complainant also had concerns with regard to whether the records he had received from the respondents in response to his October Request were identical to the records that the respondents had brought with them to the February 11, 2010 hearing in support of their position that they had complied with the FOI Act.  In order to address the complainant’s second concern immediately, without objection from the respondents, the hearing officer recessed the hearing so that the complainant could do a page-by-page comparison of the records that he received from the respondents with the copies of the records that the respondents brought with them to the hearing.  At the end of his comparison, the complainant made the following statement for the record:  “[the records] seemed to be identical and [the review was] very helpful for my purposes.” 

 

15. It is found that, once the respondent University received the October Request for records at issue in this case, the request was forwarded to the respondents’ Assistant Director of Compliance/Privacy. 

 

16. It is found that, when the respondents’ Assistant Director of Compliance/Privacy received the October Request, she reviewed it and promptly forwarded the request to every department and/or office within the University that she believed had or might have records responsive to the request.  Specifically, it is found that the respondents’ Assistant Director of Compliance/Privacy forwarded the October Request to the following departments and offices: 1) Dining Services Department; 2) Office of Student Employment; 3) Human Resources Department; and 4) Office of Diversity and Equity. 

 

17. It is further found that, in addition to forwarding the October Request to the departments and offices identified in paragraph 16, above, the respondents’ Assistant Director of Compliance/Privacy included the following instruction: “Please think broadly about what [records would be responsive to the request] and if [you] have any record that [you] think . . .  might in any way, shape or form be relevant, to please provide it to [my] office.” 

 

18. It is found that when records responsive to the October Request were located within the departments and offices listed in paragraph 16, above, they were forwarded to the respondents’ Assistant Director of Compliance/Privacy. 

 

19. It is further found that, upon receiving records from the various departments and offices referred to in paragraph 16, above, the respondents’ Assistant Director of Compliance/Privacy again contacted the Dining Services Department so that she could include for production to the complainant a record that was not initially provided to her by the department. 

 

20. At some point during the February 11, 2010 hearing, the complainant made a motion that the hearing officer state for the record whether or not she knew or had a relationship with an individual by the name of Scott Harmon, who was mentioned in some of the responsive records.  The complainant further moved that, if the hearing officer knew or had any relationship with Scott Harmon, she recuse herself from this case.  The hearing officer, addressing the parties on the record, stated as follows:  “I don’t know who . . .who is Scott Harmon?”  The respondents informed the hearing officer that Scott Harmon was an individual who worked in the respondent University’s Dining Services Department.  (See 22, infra.).

 

21. In order to address the complainant’s continued concern with regard to the sufficiency of the respondents’ search for records in this case, the hearing was continued to March 11, 2010 and the hearing officer issued the following written order: 

 

. . . In an effort to address the complainant’s concerns, it is hereby ordered that the respondents produce a witness (or witnesses) to testify at the March 11, 2010 hearing with regard [to] the respondents’ search for responsive records in this case.  Such witness (or witnesses) should be prepared to address the following aspects of the search:  the identity of the individuals who gathered records responsive to the complainant’s request; where such individuals searched for records responsive to the request (i.e., in their hard files, email, backup email, storage facilities, etc.); and who such individuals may have conferred with in their respective departments to ensure that all responsive, non-exempt records were search[ed] for and produced to the complainant.  It is recommended that, prior to the March 11, 2010 continued hearing in this case, the respondents’ witness (or witnesses) will have conferred with all of the individuals who have gathered records in this case, so that such witness (or witnesses) can relate at the hearing facts specific to each individual’s search for records. 

 

22. At the start of the March 11, 2010 hearing, the complainant moved the hearing officer to recuse herself or to clarify her statement set forth in paragraph 20, above, with regard to whether she knew or had a relationship with Scott Harmon.  At this time, the hearing officer stated for the record that she did not know nor was she related to any individual by the name of Scott Harmon. Accordingly, it is found that, with such statement, the complainant’s motion to recuse the hearing officer was rendered moot.   

 

23. It is found that, when respondents’ Assistant Director of Compliance/Privacy received the complainant’s October Request for records, she contacted the following individuals to have their respective departments and offices search for records responsive to the complainant’s request:  1) Kelly Jones, from the Office of Diversity and Equity; 2) Jackie Soroka, from the Office of Student Employment; 3) Scott Harmon, from the Dining Services Department; 4) Dennis Pierce, from the Dining Services Department; 5) Judy Watson, from the Human Resources Department; and 6) Michael Eagen, from the Human Resources Department. 

 

24.  It is further found that, with the exception of Dennis Pierce,[2] the respondents’ Assistant Director of Compliance/Privacy contacted each of the individuals listed in paragraph 23, above, again and reviewed the complainant’s October Request with them, paragraph by paragraph, in order to ensure compliance.  It is found that, at the time the respondents’ Assistant Director of Compliance/Privacy reviewed the complainant’s October Request with Ms. Jones, Ms. Soroka, Mr. Harmon, Ms. Watson and Mr. Eagen, each of these individuals had a copy of the complainant’s request in their possession. It is further found that the respondents’ Assistant Director of Compliance/Privacy instructed the individuals listed in paragraph 23, above, to inquire with everyone in their respective offices and departments as to whether any individual had records that would be responsive to the complainant’s October Request.  Finally, it is found that the respondents’ Assistant Director of Compliance/Privacy instructed the individuals listed in  paragraph 23, above, to inform her whether they believed some other office might be in possession of responsive records. 

 

25. In addition, it is found that, subsequent to the order referenced in paragraph 21, above, the respondents’ Assistant Director of Compliance/Privacy again contacted Ms. Jones, Ms. Soroka, Mr. Harmon, and Mr. Eagen to confirm that these individuals had searched their records thoroughly and had not missed a location where responsive records might be located.  It is found that these individuals’ searches for responsive records included electronic and paper record searches.  It is further found that, subsequent to the order referenced in paragraph 21, above, the respondents’ Assistant Director of Compliance/Privacy also conducted her own search of the respondents’ electronic databases to ensure that no responsive electronic record had been overlooked. 

 

26. It is further found that, after providing to the complainant all of the records located in response to his October Request at no charge, the complainant made a follow-up request for records, seeking records “related to the development and implementation of the Employee Illness Tracking Form.” (the “follow-up Request”).  It is found that the respondents’ Assistant Director of Compliance/Privacy, working in conjunction with Mr. Harmon and with another individual, conducted a subsequent search for records responsive to this follow-up Request.  Finally, it is found that the respondents’ Assistant Director of Compliance/Privacy also communicated with the respondent University’s Department of Environmental Safety to inquire as to whether this department had any records responsive to the complainant’s follow-up Request.  It is further found that, once the records responsive to the follow-up Request were located, they were provided to the complainant by the respondents’ Assistant Director of Compliance/Privacy at no charge. 

 

27.  Based on the findings in paragraphs 16, 17, 19, and 23 through 26, above, it is concluded that the respondents conducted a thorough search for records in this case.

 

28.  It is found that, while the respondents determined that some of the records responsive to the September Request, referred to in paragraph 3, above, were exempt from disclosure pursuant to the attorney-client privilege and 1-210(b)(17), G.S., these matters were not raised by the operative complaint in this case, referred to in paragraph 2, above, and therefore the Commission will not further address these matters. 

 

29. Based on the finding in paragraph 28, above, the complainant’s outstanding Motion for In Camera Inspection, referred to in paragraph 7, above, was denied at the conclusion of the March 11, 2010 hearing.

 

30. It is further found that, in response to the complainant’s October Request, the respondents did not redact or withhold any responsive records. 

 

31. Based on the finding in paragraphs 28 and 30, it is concluded that the respondents did not violate the FOI Act, 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 dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 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:

 

Arthur Smith

74 Mulberry Road

Mansfield, CT 06250

 

Chief Audit and Compliance Officer, State

of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics; and

State of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics

c/o Ralph E. Urban, Esq.

Assistant Attorney General

University of Connecticut

Budds Building

343 Mansfield Road, U-2117

Storrs-Mansfield, CT 06269-2177                                                                                                                                                                                                               

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-668FD/paj/10/28/2010

 



[1] The complainant’s September 28, 2009 request for records included the following additional request:  “All information related to the employment of Aidan Authur Smith including but not limited to email correspondence, telephone messages, memoranda, letters and any and all electronic messaging.” 

[2] The respondents’ Assistant Director of Compliance/Privacy testified that, when she attempted to speak to Mr. Pierce at this time about the complainant’s October Request, she was informed that he was on vacation.  However, she further testified that Mr. Harmon is Mr. Pierce’s subordinate, and that he had access to the same records within that Dining Services Department as did Mr. Pierce.