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Final Decision FIC2013-680
In the Matter of a Complaint by
FINAL DECISION
Seth Wolfe,
     Complainant
     against
Docket #FIC 2013-680
First Selectman, Town of Clinton;
and Town of Clinton,
     Respondents
July 23, 2014

     The above-captioned matter was heard as a contested case on May 23, 2014, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
     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 email dated September 23, 2013, the complainant requested that the respondents provide him with copies of the following records:
[a] All emails, memos and correspondence to and from William Fritz regarding Seth Wolfe and line striping of [L]iberty street in Clinton[,] Connecticut to Peter Neff, Edward O’Conner, Robert Sepega, and Todd Lawrie.  Dates are to include April thru August of 2013.
[b] [A]ll phone records for any phone line available to William Fritz in April, July, and August of 2013 during town hall hours to include any phone numbers used by Robert Sepega, Todd Lawrie, Peter Neff, and Edward O’Conner or William Fritz to include personal cell phones, when they are working for the town of Clinton.  Information should include only those phone calls and a list of all numbers used by each individual named above.
     3.  It is found that, by email dated October 1, 2013, the complainant followed-up with the respondents regarding his September 23rd request described above, and informed the respondents that he would be filing a complaint with the Freedom of Information (“FOI”) Commission and the Office of the Chief State’s Attorney for their failure to provide him with the requested information.
     4.  It is found that, by email dated October 2, 2013, the respondents apologized for the delay in responding to his request as they were waiting for the Town Attorney’s response regarding the requested telephone records.  The respondents also informed the complainant that they would have their IT director begin collecting the emails requested as well as the other requested documents.  In addition, the respondents informed the complainant that with respect to the telephone records they could provide the complainant with copies of the bills for Town owned cell phones, but any telephone numbers that were unrelated to his records request as well as any personal telephone numbers would be redacted.  The respondents further informed the complainant that the process of compiling such records would require a significant amount of time and may have to be done outside of normal working hours.  The complainant would be charged for time spent compiling any records outside of normal working hours as well as $1.00 per copy, and would be notified when the information was compiled and what the cost would be for the records. 
     5.  It is found that, by email dated October 2, 2013, the complainant notified the respondents that he would proceed with his FOI complaint against the respondents.  He also informed the respondents that they are required under law to provide him with copies of personal cell phone records of any calls made on town time, and that they could charge only for copies and not time spent compiling the records.  In addition, the complainant requested that the respondents advise him of the cost of any copies prior to submitting them to the complainant.
     6.  It is found that, by email dated October 22, 2013, the complainant notified the respondents that since the respondents had not provided him with the information requested in the complainant’s September 23rd request, he had filed a complaint with the FOI Commission against the respondents. 
     7.  It is found that, by email dated October 22, 2013, the respondents informed the complainant that they had compiled the requested emails.  The respondents also informed the complainant that they had yet to receive the requested telephone information due to the fact that certain telephone numbers as described in paragraph 4, above, had to be redacted.
     8.  It is found that, by email dated October 25, 2013, the complainant informed the respondents that he would forward their October 22nd response to the FOI Commission and that he expected to have all the requested information by noon that day.   
     9.  It is found that on October 29, 2013, there were several email exchanges between the complainant and the respondents regarding the collection and provision of the requested records.  The respondents notified the complainant that they had compiled 178 pages of documents responsive to his request that would be provided to him upon receipt of $178.00.  The complainant informed the respondents that he would pick up the emails on October 29th, but refused to pay the $178.00 charge because he only wanted copies of the telephone records described in paragraph 2[b], above.  The respondents informed the complainant that such emails and telephone records were the only responsive records, and that no more time would be spent on responding to the complainant’s request.  The complainant then proceeded to file his complaint with the FOI Commission.
     10. By email dated and filed on October 29, 2013, the complainant appealed to the FOI Commission alleging that the respondents violated the FOI Act by failing to provide the complainant with copies of all documents responsive to the complainant’s records request, described in paragraph 2, above.  In addition, the plaintiff claimed that he initially filed his complaint with the Commission on October 4, 2013, but the Commission has no record of such complaint.  Accordingly, the complainant’s October 29, 2013 filing, is the operative complaint in this matter.

     11. Section 1-200(5), G.S., defines “public records or files” as:
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.
     12. 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 . . . (3) receive a copy of such records in accordance with section 1-212.  [Emphasis added.]
     13. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     14. It is found that the records requested by the complainant are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S.
     15. At the hearing, the complainant testified that the respondents provided him with six emails that he had previously forwarded to the respondents, but alleged that there were additional emails that had yet to be provided.  The complainant also testified that he did not pay the $178.00 copying fee, described in paragraph 9, above, because he was not permitted to inspect the records to determine whether they were responsive to his request.  In addition, the plaintiff contended without having examined the 178 pages of records that such records were not responsive to his request.  The plaintiff argued that the number of responsive telephone records should be less than 178 pages and therefore the 178 pages compiled by the respondents must contain additional telephone numbers that he had not requested in his September 23rd request. 
     16. The respondents testified that the Town’s IT department spent an extensive amount of time searching for records and that the 178 pages consisted of all records (including emails, correspondence and telephone records) responsive to the complainant’s September 23rd request.  In addition, at the hearing, the respondents adjusted the payment amount from $178.00 ($1.00 per page) to $89.00 (fifty cents per page).  The respondents also testified that they would not permit the complainant to inspect the records or receive copies without submitting the $89.00 fee. 
     17. With respect to the complainant’s contention that the records compiled by the respondents contain additional telephone numbers that were not included in his September 23rd request, it is found that the respondents are not required to exclude such numbers.  Rather, the respondents must provide the complainant with all records maintained or kept on file that are responsive to the complainant’s request.
     18. It is found that that the 178 pages compiled by the respondents are responsive to the complainant’s September 23rd request. 
     19. With respect to the fee that the respondents may charge for copies of the requested records and their right to require prepayment of the fee prior to providing such records to the complainant, §1-212(a) , G.S., permits a municipality to charge a fee for a copy of a public record that “shall not exceed fifty cents per page.”  Section 1-212(c), G.S., further provides, in relevant part, that: “[a] public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more….”

     20. It is found that the fee for copies of the requested records is more than ten dollars and that the respondents were permitted to require prepayment of the copy fee.  It is also found, however, that the respondents overcharged the complainant for copies of the responsive records.  It is therefore concluded that the respondents violated §1-212, G.S., of the FOI Act.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  If the respondents have not already provided the complainant with copies of all of the records described in paragraphs 16 and 18 of the findings, above, then they shall immediately provide copies to the complainant, free of charge.
     2.  Henceforth, the respondents shall strictly comply with the copying cost provisions set forth in §1-212, 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:
Seth Wolfe
144 East Main Street
Apt. 24D
Clinton, CT  06413
First Selectman, Town of Clinton; and Town of Clinton
c/o John S. Bennet, Esq.
Gould, Larson, Bennet, Wells and McDonnell
30 Plains Road
P.O. Box 959
Essex, CT  06426
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-680/FD/cac/7/23/2014