FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 30, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the matter was consolidated with the Docket #FIC 2010-125; Paul J. Garlasco v. First Selectman, Town of Bridgewater and Board of Selectmen, Town of Bridgewater. 

 

At the September 30, 2010 hearing, the complainant began the presentation of his case-in-chief in Docket #FIC 2010-062; Paul Garlasco v. Town of Bridgewater, but was unable to complete the presentation.  The hearing was continued to October 29, 2010.  On October 29, 2010, the complainant and the respondents again 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.   It is found that, by letter dated January 21, 2010, the complainant made the following request for records to William Stuart, Selectman, and the Town of Bridgewater:  “As you know, you and the Town of Bridgewater can simply print out the [Burnham Fund] checks from the online access.  Therefore, please print out the front and back of all checks for the period January 1, 2000 to the present. . . . For years prior to UBS[,][1] please simply provide me with a release so I may acquire the copies at my own expense.”

 

3.   It is found that, by letter dated January 25, 2010, the respondents acknowledged the complainant’s request and informed him that they would review their records, and notify him if they located any responsive records.  It is further found that the respondents informed the complainant that, while the Town of Bridgewater does not have the ability to “simply print out the check” from an online access, they had contacted UBS by phone to inquire with an account executive about the availability of obtaining the documents that the complainant was requesting.  Finally, it is found that the respondents informed the complainant that it was their understanding that they were not required to provide the complainant with a “release so that [he] could acquire copies, and that his request for such a release was respectfully denied.” 

 

4.   By way of a fax coversheet dated and filed February 2, 2010, the complainant appealed to the Commission, stating the following:  “FOI request dated 1/21/09 [sic] has gone unfulfilled please set it down for a hearing ASAP.” 

 

5.   By letter dated March 5, 2010, the complainant’s request for an expedited hearing was denied. 

 

6.   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.

 

7.   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 (1) inspect such records promptly during regular office or business hours, . . . or (3) receive a copy of such records in accordance with section 1-212.

 

8.   Section 1-212(a), 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.

 

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

 

10.  The Commission takes administrative notice of the records and final decision in Docket #FIC 2008-609; Paul Garlasco v. Amy Allingham, Treasurer, Town of Bridgewater; and Town of Bridgewater (August 12, 2009) (hereinafter “Docket #FIC 2008-609”).  The Commission also takes administrative notice of the records and final decision in Docket #2009-583; Paul Garlasco v. Amy Allingham, Treasurer, Town of Bridgewater; and Town of Bridgewater (January 13, 2010) (hereinafter “Docket #FIC 2009-583”).    

 

11.  In Docket #FIC 2009-583, the complainant filed with the Commission a notice of non-compliance with the order in Docket #2008-609, alleging, in relevant part, that William Stuart, the First Selectman of Bridgewater, failed to turn over all documents requested in the complainant’s request of August 28, 2008.  In Docket #FIC 2008-609, the Commission found, in relevant part, that:

 

a.       the complainant requested that the respondents provide him with copies of the bank statements and cancelled checks for the Burnham Fund for the last three years to the present, the Burnham trust document and/or will establishing the Burnham Fund, and the authorization for all disbursements in the last three years;

b.      the respondents provided the complainant with a copy of the requested will; and

c.       the only other requested records that the respondents maintain are the bank statements related to the fund.

 

12.  In Docket #FIC 2008-609, the Commission reviewed the bank statements described in paragraph 11.c, above, in camera.  After such review, the Commission issued the following order:

 

The respondents shall forthwith provide the complainant with a copy of the requested records, with no redactions, free of charge.

 

13.  In the complainant’s non-compliance complainant, Docket #FIC 2009-583, after examining the complaint and pleading in that matter and construing all allegations most favorably to the complainant, the Commission found that the respondents complied with the order in Docket #FIC 2008-609.  The Commission found for the second time that the respondents do not maintain the checks and authorizations described in paragraph 11.a, above.  (See Docket #FIC 2008-609, ¶ 9 (“It is found that the only records not provided to the complainant which the respondents maintain are the bank statements related to the fund”); Docket #FIC 2009-583, ¶ 9 (“It is again found that the respondents do not maintain the checks and authorizations. . . . “).  Furthermore, in connection with Docket #FIC 2009-583, the Commission cautioned the complainant from continuing to request records that the respondents do not maintain as follows:

 

Although the Commission declined to consider the imposition of a civil penalty in this matter, the parties are advised that §1-206(b)(2), G.S., provides in relevant part that: “[i]f the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-17e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars. . . .”

14.  In the instant case, the complainant makes the following contentions with regard to the respondents maintaining the Burnham Fund checks:  the first contention is that he has new evidence that the respondents do maintain the checks because they provided him with three such checks when they complied with the disclosure order in Docket #FIC 2008-609; the second contention is that, before the town puts any computer program on town computers, it has an obligation to seek approval from the Department of Information Technology for such program and, furthermore, that the Commission has the authority pursuant to §1-211, G.S., to compel the respondents to establish an online relationship with their broker so that they could have easy, online access to copies of the Burnham Funds checks. 

15.  With regard to the complainant’s first contention, it is found that, on or around October 8, 2009, in reviewing their records in an attempt to comply with the disclosure order in Docket #FIC 2008-609, the respondents located three checks in the Treasurer’s office and provided copies of those checks to the complainant.  It is found that the respondents explained that, while they do not generally maintain the checks or copies of the checks drawn from the Burnham Fund, they happened to find three checks in the Treasurer’s office and wanted to and did provide copies of these checks to the complainant.  It is further found that, with respect to the time period while the Burnham Fund was being handled by a broker firm known as UBS, the respondents informed the complainant in a letter of February 8, 2010 that “[t]he Burnham Fund UBS account has been closed and we have been advised by UBS that we no longer have computer access to the account or the ability to review the and print copies of the checks. . . .”  The respondents further informed the complainant that “even though the [UBS] account has been closed, [UBS] continues to have computer access to the checks for the past eighteen months and provided us copies of the two checks written during that period.”  It is further found that, when the respondents received the copies of the checks from UBS, they promptly forwarded the copies to the complainant.  Finally, it is found that the complainant subpoenaed a representative from Merrill Lynch to the September 30, 2010 contested case hearing, which representative brought with him copies of eight checks drawn from the Burnham Fund and provided the copies of these checks to the complainant.  It is found that, while Merrill Lynch maintained copies of the checks drawn from the Burnham Fund, the respondents did not.[2] 

 

16.  Specifically, and emphatically, it is found that the respondents do not maintain copies of the requested checks.[3]  

 

17.  With respect to the complainant’s second contention, §1-211, G.S., provides in relevant part, as follows:

 

(a)  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. . . .

(b)  Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under the Freedom of Information Act to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions.

 

(c)  On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. . . .

 

18.  It is found that the complainant’s argument with respect to the computer programs that the respondent Town installs on Town computers is inapposite to the issues in the case.  In this case, the complainant does not have an issue with a computer program that the Town installed on its computers, he has an issue with the electronic banking relationship that the Town decided not to set up with its broker. 

 

19.  With regard to the complainant’s second argument related to §1-211, G.S., the respondents testified that they chose to forgo an online banking relationship with their former brokerage company, UBS, because they were concerned with online security matters.  It is found that, because UBS is no longer the company handing the Burnham Fund account, the respondents are not entitled to online access to the Burnham Fund checks written while the fund was being managed by UBS. 

20.  It is found that the respondent Town does not have an online banking relationship with the current brokerage company handling the Burnham Fund.  It is further found that the respondent Town has never had an online banking relationship with any of the brokerage companies that have helped it manage the Burnham Fund in the past.  It is found that copies of the Burnham Fund checks are not maintained on any computer owned, leased or otherwise used by the Town.  It is therefore found that, other than the copies of the checks already provided to the complainant, the respondents cannot reasonably make copies of Burnham Fund checks nor have such copies made. 

 

21.  Finally, it is found that, in order to support the contention that this Commission can impose an affirmative obligation on the respondent Town to initiate an online banking relationship with its broker, the Commission would have to construe the provisions of §1-211(b), G.S., as containing or embodying such a legislative intent.   In order to do so, the Commission would have to find that the language of §1-211(b), G.S., is somehow ambiguous. 

22.  Section 1-2z, G.S., the “Plain meaning rule,” provides:

 

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered. 

 

23.  It is concluded that the meaning of  §1-211(b), G.S., is plain and unambiguous.  Accordingly, the Commission declines the complainant’s invitation to graft the affirmative obligation described in paragraph 21, above, onto this statutory provision. 

24.  The respondents urge the Commission to issue a civil penalty against the complainant “for continuously seeking the same documents which the Commission has determined that the Town does not have or maintain.”

 

25.  While the Commission agrees with the respondents that the complainant has stepped dangerously close to the line in filing a complaint based upon a request for copies of the Burnham Fund checks from the respondents, it cannot be said that the complainant did not raise a new legal theory of the case in this appeal.  See ¶ 14, above.  However, the Commission again cautions the complainant that any further complaint to the Commission based upon a request for copies of these same checks from the respondents is likely to be viewed as being made “frivolously, without reasonable grounds and solely for the purpose of harassing” the respondents.  See §1-206(b)(2), G.S.

 

26.  It is concluded that the respondents did not violate the disclosure provisions of 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 special meeting of January 28, 2011.

 

 

__________________________

Cynthia A. Cannata

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:

 

Paul Garlasco

83 Park Lane Road

New Milford, CT  06776

 

First Selectman, Town of Bridgewater; and Town of Bridgewater

c/o Larry Pereira, Esq.

Baker Law Firm, PC

24 Delay Street

Danbury, CT  06810

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-062/FD/cac/1/31/2011