FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Daniel Schwartz,  
  Complainant  
  against   Docket #FIC 2010-225

Assistant Director of Compliance/Privacy,

State of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics;

State of Connecticut, University of Connecticut,

Office of Audit, Compliance and Ethics;

Commissioner, State of Connecticut,

Department of Public Works; and

State of Connecticut, Department of Public Works,

 
  Respondents March 23, 2011
       

           

The above-captioned matter was heard as a contested case on July 13 and October 4, 2010, and again on January 10, 2011, at which times the complainant and the respondents appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint. The Department of Public Works was added as a respondent by the hearing officer, on his own motion.

 

            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 April 7, 2010, the complainant appealed to the Commission, alleging that the respondents failed to comply with his request for certain records.

 

3.  It is found that the complainant made a March 11, 2010 request for certain annual reports and noncompliance reports by the United States Department of Agriculture (“USDA”) and the Office of Laboratory Animal Welfare (“OLAW”).

 

4.  It is found that the respondents acknowledged the request on March 12, 2010.

 

5.  It is found that the March 11 request was for documents similar in type to earlier requests beginning in December 2009, but for a different time period. The earlier requests had been referred to the Department of Public Works (“DPW”) for review, pursuant to 1-210(b)(19), G.S., because of safety concerns raised by the request.

 

6. It is found that the respondents, on April 19, 2010, also referred the complainant’s March 11 request to the DPW for review pursuant to 1-210(b)(19), G.S. The DPW had directed the respondents to submit the March 11 request for a new review, despite its similarity to the earlier request.

 

7. It is found that the DPW completed its review and sent its response to the University respondents on September 28, 2010. The DPW response concluded that “[w]hile the two current FOIA requests seek copies of records different from the first FOIA request, the type of information, the expressed concerns and suggested redactions are identical.”

 

8. It is found that the University respondents provided the requested records on October 6, 2010, having redacted the records in accordance with the DPW direction.

 

9.  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.

 

10.  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….   

 

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

 

12.  The complainant contends that the University respondents violated the FOI Act by:

 

a.       Not promptly notifying the DPW of his request;

b.      Not providing the actual records to the DPW for review;

c.       Acting on the DPW’s recommendations without a clear directive; and

d.      Redacting the records in a manner inconsistent with redactions on records provided at other times.

 

13. The complainant also contends the DPW failed to meet with the University respondents to review and discuss the actual record in the months that DPW was reviewing the request.

 

14. Section 1-210(b)(19)(b), G.S., provides in relevant part that disclosure is not required of:

 

Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) (i) by the Commissioner of Public Works, after consultation with the chief executive officer of an executive branch state agency, with respect to records concerning such agency ….   Such records include, but are not limited to:

(i)  Security manuals or reports;

(ii)  Engineering and architectural drawings of government-owned or leased institutions or facilities;

(iii)  Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

(iv)  Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(v)  Internal security audits of government-owned or leased institutions or facilities;

(vi)  Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(vii)  Logs or other documents that contain information on the movement or assignment of security personnel;

(viii)  Emergency plans and emergency preparedness, response, recovery and mitigation plans, including plans provided by a person to a state agency or a local emergency management agency or official; and

(ix)  With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply;

 

 

15. Section 1-210(d), G.S., provides in relevant part:

 

Whenever a public agency, except the Judicial Department or Legislative Department, receives a request from any person for disclosure of any records described in subdivision (19) of subsection (b) of this section under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Public Works or the Commissioner of Emergency Management and Homeland Security, as applicable, of such request, in the manner prescribed by such commissioner, before complying with the request as required by the Freedom of Information Act ….  If the commissioner, after consultation with the chief executive officer of the applicable agency … believes the requested record is exempt from disclosure pursuant to subdivision (19) of subsection (b) of this section, the commissioner may direct the agency to withhold such record from such person….

 

16. As to the issue of the University’s prompt notification of DPW of the complainant’s request, it is found that the complainant had made numerous requests for records to the University of Connecticut, all of which were reviewed by the University’s compliance officer. Since November 2008, the complainant has made 36 requests, 16 of them in 2010, and eleven between February 1, 2010 and March 29, 2010, the time period of the request at issue in this case.

 

17. It is found that the compliance officer, who is the University’s privacy officer, is also responsible for addressing all privacy issues that occur at the University; is involved in HIPAA compliance issues; was responsible for several complex investigations of ethics complaints filed with the University during the relevant time period; and, together with one other staff person in her office, processes an average of 200-250 records requests annually.

 

18. It is found that the complainant, although frustrated by the delay in receiving the requested records, did not inform the University respondents that he needed the documents by any time certain.

 

19.  With respect to the general question of promptness, the meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

20.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.           

 

21.  It is found that the University respondents’ delay in forwarding the complainant’s request was reasonable given the number of requests made by the complainant and the compliance officer’s other responsibilities, and the lack of a date by which the complainant needed the requested records.

 

22.  It is concluded that, under the facts and circumstances of this case, the University respondents promptly notified the DPW of the complainant’s request, and therefore did not violate the promptness requirement contained in 1-210(b)(19)(d), G.S.

 

23. With respect to the complainant’s contention that the University respondents violated the FOI Act by failing to forward the actual requested records to the DPW for review, it is concluded that 1-210(b)(19)(d), G.S., does not contain that requirement, and that the complainant has failed to allege a violation of the FOI Act.

 

24. With respect to the complainant’s contention that the University respondents acted on the DPW’s recommendations without a clear directive, it is found that the directive from the DPW was sufficiently clear for the University respondents to perform the redactions of personally identifying information that was directed by the DPW, and that the University respondents therefore did not violate 1-210(b)(19)(d), G.S.

 

25. With respect to the complainant’s contention that the University respondents redacted the requested records in a manner inconsistent with previous redactions, or lack of redactions, it is concluded that the complainant has failed to allege a violation of the FOI Act.

 

26. Finally, with respect to the complainant’s contention that the DPW failed to meet with the University respondents to review and discuss the requested records, it is concluded that the 1-210(b)(19)(d), G.S., requires only consultation with the University respondents, not a particular form of meeting or review of particular records, and that the complainant has therefore failed to allege a violation of the FOI Act.

 

27.  It is concluded that the respondents did not violate the FOI Act as alleged.

 

 

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 March 23, 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:

 

Daniel Schwartz

156 Highland Road

Mansfield, CT  06250

 

Assistant Director of Compliance/Privacy, 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 Michael Sullivan, Esq.

Assistant Attorney General

University of Connecticut

343 Mansfield Road, Unit 2177

Storrs, CT  06269

 

Commissioner, State of Connecticut, Department of Public Works; and

State of Connecticut, Department of Public Works

c/o Kevin J. Kopetz, Esq.

Legal Director

State of Connecticut,

Department of Public Works

165 Capitol Avenue, Room 443

Hartford, CT  06106

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-225/FD/cac/3/30/2011