TOWN OF WINDHAM, ET AL. : OF NEW BR1TAIN
APRIL 3, 2001
FREEDOM OF INFORMATION
COMMISSION, ET AL.
MEMORANDUM OF DECISION
This is an administrative appeal from a final decision of the Freedom
Cornmission ("FOIC") brought
pursuant to General Statutes §§ 1-206(b)(1) of the Freedom
Information Act ("FOIA") and 4-183 of the Uniform Administrative
Procedure Act ("UAPA"). The plaintiffs, Donald W. Schultz, Building
Official for the Town of Windharn and the Town of Windharn, seek review of the
FOIC decision in its contested case, Steven Edelman v. Donald W. Schultz,
Building Official Town of Windham, Docket No. FIC 1999-591, based upon the
assignments of error in the plaintiffs' appeal dated July 10, 2000.
letter dated December 2, 1999, the defendant, Steven Edelman, a non‑lawyer,
requested Schultz to allow him to inspect "all applicable codes" and
"’the code’ referenced in paragraph B.1 of the Town of Windham Board
of Selectmen Resolution 766." (Return of Record ("ROR"), pp.
4-5.) Said resolution is entitled "Policies and Procedures for Building,
Housing Code, Engineering, Planning ard Development Activities." (ROR, p.
7.) There is a public agency in the town specifically designated for each
subject listed in the title of Resolution 766. Edelman, specifically
referenced paragraph B. 1 in his request which is entitled "Penalties For
Failure to Secure Permit" and provides:
Where work for which a permit is required is initiated prior to obtaining said permit, a penalty fee shall be collected equal to and in addition to the amount of the permit fee. The penalty fee shall be collected whether or not a permit is subsequently issued. The payment of such penalty fee shall not relieve the responsible party from compliance with all applicable codes, or from any other penalties for violation of the code.
(ROR, pp. 5, 7.)
By letter dated December 8, 1999, Schultz responded to Edelman's December 2, 1999
request advising Edelman that his request involved "legal interpretations" and suggested that Edelman engage an attorney for the purposes of making the determination that he was seeking. (ROR, p. 6.) At the hearing before the FOIC, Schultz testified that he had a copy of the code of ordinances in his office, that his duties were to enforce the Connecticut State Building Code, and that the various codes relating to the specific subject matter were also on file at various public agencies including the Windham public library. (ROR, pp. 60, 68.)
The FOIC concluded in its final decision that Edelman's request "to inspect all applicable codes" and "the code" was overly broad and Schultz could not provide Edelman with access to inspect to inspect "all applicable codes" or "the code" as referenced in paragrraph B 1 of Resolution No. 766. (ROR p. 102, par. 12.) The FOIC concluded, however, that Schultz failed to offer Edelman access to the codes that were maintained in the Building Department's office in response to Edelman's December 8, 1999 request. (ROR, pp. 102‑03, pars. 13-14.)
this case, the court must determine whether Edelman's letter dated December 2,
1999 constituted a valid FOIC request and this
must be decided based on the facts of this
determining what constitutes a valid FOIC request, our Supreme Court, in Perkins
v. Freedom of Information Commission, supra, stated:
we have not previously had the occasion to articulate an interpretation of
what constitutes a FOIA records request, this issue is similar to others in
which the courts must defer to the exercise of administrative judgment. The
FOIC has full authority to determine the existence of public records and the
propriety of their disclosure.... The trial court's contrary conclusion relied
on distinctions that are overly formal and legalistic in light of the public
policy expressed by the FOIA. The overarching legislative policy of the FOIA
is one that favors the open conduct of government and free public access to
* * *
a practical matter, the FOIA is used repeatedly by members of the public who
are unschooled in technical, legalistic language distinctions. It would be
unreasonable to deny a member of the public access to the FOIA simply because
of arguable imperfections in the form in which a request for public records is
omitted; internal quotation marks omitted.) Id., 166-67.
the present case, the court finds that the FOIC's decision is neither in
excess of its
statutory authority nor erroneous in view of
the reliable, probative and substantial evidence
the whole record. Nor is the FOIC's decision arbitrary, capricious or
abuse of discretion. While paragraph B.1 of
Resolution 766 is not succinct, Schultz's
dated December 8, 1999 relied on distinctions that were overly formalistic and
legalistic in light of the public policy
expressed by the legislature in its creation of the FOIA.
See Perkins v. FOIC, supra, 228 Conn.
166. This, coupled with the non‑attorney status of
Edelman, made Schultz's response one that
fails to do justice to the concept of free public
access to government records. The Schultz's
December 8, 1999 response clearly was not
one that exalted the concept of open conduct of government and free public access to government records.
the hearing officer's finding in this case that Edelman's December 2. 1999
was overboard, Schultz failed in his response to offer access to the codes
that pertained to the Building Department to Edelman. Schultz failed to
provide Edelman access to inspect the codes that Schultz maintained in the
Building Department's Offices. The administrative
record indicates that copies of the codes were kept at Schultz's office. While
the record indicates that there was some ill‑will between Schultz and
Edelman, a public official has the duty and responsibility to avoid using
technical and minute distinctions with members of the public. While the
plaintiffs rely on an earlier request of November 22, 1999 directed to Schultz
and Schultz's offer to call on Edleman to inspect all the records in his
office, Edelman’s December 2, 1999 request was separate and distinct. Each
request stands or falls on its respective merit. The plaintiffs have failed to
claim or establish the applicability of any exemphon in the present case.
Accordingly, the plaintiff's appeal is dismissed and the FOIC's decision is affirmed.