FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
David Gioiello, Jr.,  
  Complainant  
  against   Docket #FIC 2010-704

Mayor, City of Shelton; and Director,

Highways and Bridges Department,

City of Shelton,

 
  Respondents September 14, 2011
       

 

The above-captioned matter was heard as a contested case on April 8, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

1.  The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.      It is found that, by three separate letters each dated October 5, 2010, the complainant made the following requests for access to records to a) the Mayor of the City of Shelton; b) the Shelton Highways and Bridges Department; and c) the city engineer:  

 

a.       “all correspondence you have with either the City Engineer, the Head of Highways and Bridges and the alderman regard[ing] road repairs or maintenance from 1/1/2008 until 10/5/2010”;

b.      “all correspondence you have had with either the City Engineer, the Mayor, or the alderman regard[ing] road repairs or maintenance from 1/1/2008 until 10/5/2010”; and

c.       “all correspondence you have had with either the Mayor, the Head of Highways and Bridges or the aldermen regard[ing] road repairs or maintenance from 1/1/2008 until 10/5/2010.

 

3.      In each of the requests referenced in paragraph 2, above, the complainant specified that his request for access should be construed to include all letters, reports, memos, and emails. 

 

4.      By an undated letter filed November 5, 2010, the complainant appealed to this Commission, alleging that the respondent Mayor and the respondent Highway and Bridges Department violated the Freedom of Information (“FOI”) Act by denying his request for access to records. In this letter, the complainant stated that the city’s engineer had complied with his request. 

 

5.      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 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

6.      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. . . .

 

7.      Section 1-212(a)(1), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.      It is concluded that, to the extent that the respondents maintain them, the records described in paragraph 2, above,  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. 

 

9.      With regard to the request for access to records directed to the Mayor, it is found that, shortly after receiving the request, the Mayor had his assistant telephone the complainant to schedule an appointment to review the relevant records.  It is further found that, within two weeks from the date of the request, the Mayor’s office had compiled three files of records for the complainant’s review.  It is found that the complainant scheduled an appointment to review the assembled records and went to the Mayor’s office as scheduled.

 

10.  The complainant testified that, after he reviewed the files prepared for him, he believed that there were additional records that should have been included in the files, but were not.  The complainant testified that his belief that additional records should have been provided to him stemmed from his review of the city engineer’s records, which included copies of letters to the city engineer from the Mayor.  Accordingly, the complainant testified that the Mayor’s office, having been the originating office for some of these letters, should have also provided these same letters to the complainant. 

 

11.  The Mayor’s assistant attended the contested case hearing and testified that she prepared, in conjunction with assistance from the Director of Public Works, the three files for the complainant’s review.  It is found that the Mayor’s assistant was not in the office on the day that the complainant reviewed the records.  It is found that the Mayor’s assistant left the files she had prepared for the complainant with an administrative assistant with instructions that the files should be provided to the complainant upon his arrival.  The Mayor’s assistant brought the files that she had prepared to the April 8, 2011 contested case hearing for the purpose of demonstrating to the hearing officer what was prepared for the complainant. 

 

12.  The complainant testified that he did not believe that the files brought to the contested case hearing were the same files that he was provided on the day he visited the Mayor’s office because the files he was provided at the office were much smaller than those tendered at the contested case hearing. 

 

13.  It is found that, subsequent to his review of the files at the Mayor’s office, the complainant did not contact the office or in any way express his belief that the files he was provided should have contained additional records.

 

14.  It is found that it is possible that there was some mix-up between what the Mayor’s assistant left for the complainant’s review and what was actually provided to the complainant.

 

15.  It is found, however, that, at this time, the complainant no longer desires access to these files or copies of the records the files contain. 

 

16.  With regard to the request for access to records directed to the Highways and Bridges Department, it is found that, by letter dated February 22, 2011, the public works director responded to the complainant’s request for access, indicating that he had instructed the Highway and Bridges Department personnel “to make all such information in their possession available for [the complainant’s] review.” 

 

17.  The complainant contends that the Highways and Bridges Department’s response to his request was not timely.  With regard to this issue, it is first found that the Highway and Bridges Department does not employ a “director.”  It is further found that the Highway and Bridges Department had previously employed a superintendent, but that this individual left his position in July 2010.  It is further found that, subsequent to July 2010, the Highway and Bridges Department had an acting superintendent, who was also the Director of the Public Works Department.  In addition, it is found that, because the request for access to records in this case was directed generally to the “Shelton Highways and Bridges Department,” there was a lapse in time before the acting superintendent realized that he perhaps should have responded independently to the complainant’s request for access.  It is finally found that when the acting superintendent realized that he should have responded to the complainant’s request, he issued the letter referenced in paragraph 16, above.    

 

18.  The complainant testified that, by the time he received the letter referenced in paragraph 16, above, more than four months had passed since the time he made his request and he no longer required access to these records.  For this reason, the complainant testified he did not respond to the letter or make arrangements to review the records. 

 

19.  It is unfortunate that the complainant did not receive access to the records he desired in a timelier manner.  It is found, however, that all of the miscommunications and mix-ups in this case could have been avoided if all of the parties had been more proactive in their communications with each other.

 

20.  Based on the facts and circumstances of this case, it is concluded that the respondents did not violate the FOI Act. 

 

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 September 14, 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:

 

David Gioiello, Jr.

65 Walnut Tree Hill Road

Shelton, CT  06484

 

Mayor, City of Shelton; and Director, Highways and Bridges Department

c/o Ramon S. Sous, Esq.

159 Main Street

Seymour, CT  06483

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-704/FD/cac/9/14/2011