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Final Decision FIC2013-525
In the Matter of a Complaint by
FINAL DECISION
Ethan Book,
     Complainant
     against
Docket #FIC 2013-525
Mayor, City of Bridgeport;
and City of Bridgeport,
     Respondents
June 25, 2014

     The above-captioned matter was heard as a contested case on February 19, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
     At the conclusion of the hearing in this matter, pursuant to §1-21j-38 of the Regulations of Connecticut State Agencies, the hearing officer requested that the respondents submit, as after filed exhibits, an affidavit from the two members of the respondents’ staff who conducted the search for the records at issue in this case.  The complainant did not object. On February 27, 2014, the respondent submitted one exhibit which has been marked as follows:
Respondents' Exhibit 3: Affidavit of Shakira Simpson and the Affidavit of Margo Litz (although captioned affidavit of Shakira Simpson) both dated February 27, 2014 with attachments.  
     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 marked “received” by the respondents on August 13, 2013, the complainant made a request to the respondent Mayor for the following:
a. “A copy of the City Council meeting minutes wherein there was approval for City membership in International Council on Local Environmental Initiatives (ICLEI);
b. A copy of the initial  membership agreement between the City of Bridgeport and ICLEI (hereinafter “agreement”);
c. That documentation which evidences the amount of annual dues for membership in ICLEI;
d. A copy of a carbon emissions inventory which is known to have been completed during about 2008;
e. A copy of the City Council meeting minutes wherein there was approval for City participation in the ICLEI Climate Resilience campaign; and 
f. A copy of the documentation which reflects the City’s participation in the ICLEI Climate Resilience campaign.”
     3.  It is found that by letter dated August 20, 2013, the respondents informed the complainant that his request had been received and was under review.
     4.  However, by letter dated September 1, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply 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 section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
     6.  Section 1-206(a), G.S., provides in relevant part that:
Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request.  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.
     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, (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. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 
     8.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. The type of copy provided shall be within the discretion of the public agency, except (1) the agency shall provide a certified copy whenever requested, and (2) if the applicant does not have access to a computer or facsimile machine, the public agency shall not send the applicant an electronic or facsimile copy.”
     9.  It is found that the requested records, to the extent they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S. 
     10.  It is found that upon receipt of the Commission’s notice of a complaint, the respondents responded to the complainant’s request by letter dated November 18, 2013, as follows:
a. “Matter did not go before City Council, document does not exist;
b. Available upon receipt of payment (2 pages @ $.50 per page);
c. Available upon receipt of payment (1 page @ $.50 per page);
d. Report is available. The total cost of the document is $77.00 (154 pages @ $.50 per page). A $25.00 deposit will be required before copying;
e. Matter did not go before City Council, document does not exist; and
f. Available upon receipt of payment (2 pages @ $.50 per page).”
The respondents informed the complainant that upon receipt of payment, the documents would be forwarded to him.
     11. It is found that by check dated November 22, 2013, the complainant submitted the required $25.00 deposit for the Carbon Emission Report and the additional $2.50 payment for the responsive records described in paragraphs 2b and 2f, above. 
     12. By letter dated November 22, 2013, the respondents provided the complainant with the records responsive to paragraphs 2b, 2c and 2f, above, which were two records totaling three pages even though he provided payment for five pages.
     13. The complainant submitted payment for the balance of the requested records by check dated November 25, 2013, and was provided with a copy of Carbon Emissions inventory report.
     14. At the hearing on this matter, the complainant contended that he was not provided with a copy of the agreement and that while he was eventually provided with responsive records, the respondents were still in violation of the FOI Act for failing to promptly comply with his request.
     15. With respect to the complainant’s request for the agreement, the respondents’ counsel represented at the hearing on this matter, and it is found, that the respondents maintain one two-page record responsive to the complainant’s request described in paragraphs 2b and 2f, above, even though the respondents’ November 18, 2013 letter implies that there were two separate records responsive to those requests.
     16. Consequently, the complainant was over charged by a dollar for a copy of the responsive records.
     17. With respect to the complainant’s contention that the respondents were not prompt in complying with his request, the Commission has held that the meaning of the word "promptly" is a particularly fact-based question. 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.
    18. 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.
     19. It is found that while there is evidence in the record that the respondents were without one of their more experienced staff members when they received the complainant’s records request, and that they had no reason to know that his request was time sensitive, there is no evidence in the record to explain:
a. why the respondents did not begin work on the request until a week after it was received;
b. why instructions on how to proceed with a search for the records were not followed for another week after the instructions were issued; or
c. why there was almost a three month lapse in any efforts to search for the records.
     20. Consequently, it is found that the respondents unduly delayed complying with the complainant’s request.  Accordingly, it is concluded that the respondents violated the promptness provisions of §§1-210(a) and 1-212(a), G.S.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The respondents shall forthwith reimburse the complainant one dollar.
     2.  Henceforth, the respondents shall strictly comply with all the provisions of §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 2014.
__________________________
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:
Ethan Book
P.O. Box 1385
Fairfield, CT  06825
Mayor, City of Bridgeport; and City of Bridgeport,
c/o Gregory M. Conte, Esq.
Office of the City Attorney
999 Broad Street
2nd Floor
Bridgeport, CT  06604
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-525/FD/cac/6/25/2014