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Final Decision FIC2013-666
In the Matter of a Complaint by
FINAL DECISION
Edward Peruta and American News and
Information Services, Inc.,
     Complainants
     against
Docket #FIC 2013-666
Reuben Bradford, Commissioner, State of
Connecticut, Department of Emergency
Services and Public Protection; and State
of Connecticut, Department of Emergency
Services and Public Protection, 
     Respondents
July 23, 2014

     The above-captioned matter was heard as a contested case on May 27, 2014, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with docket #FIC 2013-665; Edward Peruta and American News and Information Services, Inc. v. Reuben Bradford, Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection.
     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 on October 1, 2013, the complainants requested the following records:
a.  Annual audits of personnel engaged in secondary employment from January 1, 2010 to the present; and
b.  All supporting documentation used to prepare such annual audits.
     3.  It is found that the respondents acknowledged receipt of the complainants’ request on October 3, 2013.
     4.  By letter filed October 24, 2013, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly provide them with the records they requested.  The complainants requested the imposition of a civil penalty.
     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, …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:
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.
     7.  Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     8.  It is concluded that the records requested by the complainants are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     9.  It is found that the Legal Affairs Unit sent the complainants’ request to Human Resources on October 17, 2013, with a requested return date of October 31, 2013.
     10. It is found, however, that Human Resources did not send any records responsive to the complainants’ request to the Legal Affairs Unit until December 24, 2013.
     11. It is found that on December 30, 2013, responsibility for completing the complainants’ request was reassigned to another attorney in the respondents’ Legal Affairs Unit.
     12. It is found that upon review of the records sent to the Legal Affairs Unit by Human Resources, the staff attorney newly assigned to the complainants case realized that Human Resources had failed to provide all of the records that the complainants requested.
     13. It is found that between December 30, 2013, and February 3, 2014, the attorney alerted Human Resources at least twice that their compliance was incomplete, and requested that the department provide the remainder of the records.
     14. It is found that by April, 2014, the attorney still had not received any additional records from Human Resources.  It is found that at that time, the attorney communicated with Human Resources again, and requested more current spreadsheets and back-up information, in order to provide the most up-to-date records available to the complainants.
     15. It is found that, in April 2014, the attorney provided the partial set of records that Human Resources had sent to the Legal Affairs unit on December 24, 2013.
     16. It is found that by the time of the hearing, the attorney had received the balance of the records from Human Resources, but had not yet provided such records to the complainants. 
     17. The respondents’ witness testified credibly that her department, which has responsibility for providing legal services to the respondents, was severely overburdened and understaffed during the period of time that the complainants’ request was pending.  The respondents’ witness, who was the attorney assigned to the complainants’ matter, was handling over 30 pending, active requests for records, many of which were filed by the complainants.
     18. The complainants contended that for years the respondents have offered excuses for their lack of promptness.  The complainants also observed that none of the information requested was exempt from disclosure and, therefore, required no time-consuming examination by legal staff for redactions.  The complainants explained that they need to make numerous, overlapping requests because the respondents take so long to respond that the requests become obsolete.  For instance, in this matter, the complainants point out that in October, they asked for records through “the present,” but by April, when they received the first set of responsive records, database they requested was already obsolete, lacking information from October to April.
     19. Notwithstanding the respondents’ explanation for their tardy compliance, it is found that six months for compliance with the complainants’ request in this matter was not prompt. 
     20. It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide records to the complainants in a prompt manner.
     21. With respect to the complainants’ request for the imposition of a civil penalty against the respondents, the Commission takes administrative notice that of the 30 appeals to the Commission against the respondents since 2011, five resulted in a finding that the respondents failed to provide records promptly.  Of those five, two involved substantive legal issues of whether the requested records must be disclosed, and two were appeals brought by complainants who have made and continue to make an unusually large number of requests for records from the respondents.
     22. The Commission is optimistic that the respondents’ efforts to remedy the problems outlined in paragraph 17, above, will enable them to comply in a more timely manner with the complainants’ requests for records.
     23. After consideration of the entire record in this case, the Commission declines to consider the imposition of civil penalties against the respondents.  However, the Commission also advises the respondents that if similar unacceptable delays occur in the future, civil penalties may be warranted.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  Henceforth, the respondents shall strictly comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 23, 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:
Edward Peruta and American News and Information Services, Inc.
c/o Rachel Baird, Esq.
8 Church Street
Torrington, CT  06790
Reuben Bradford, Commissioner, State of Connecticut, Department
of Emergency Services and Public Protection; and State of Connecticut,
Department of Emergency Services and Public Protection
 c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-666/FD/cac/7/23/2014