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Final Decision FIC2013-713
In the Matter of a Complaint by
FINAL DECISION
James Torlai,
     Complainant
     against
Docket #FIC 2013-713
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection, Division of State
Police; and State of Connecticut,
Department of Emergency Services and
Public Protection, Division of State
Police,
     Respondents
August 13, 2014

     The above-captioned matter was heard as a contested case on June 16, 2014, at which time the complainant and the 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.  By letter of complaint filed November 18, 2013, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his October 25, 2013 request for records related to an arrest of an individual on January 8th, 2012.
     3.  It is found that the complainant made a July 3, 2013 request for a copy of all breath test results related to the arrest of Richard Angelillo on or about January 8, 2012.
     4.  It is found that the respondents acknowledged the request on July 9, 2013.
     5.  It is found that the complainant repeated his July 3, 2013 request on October 25, 2013.
     6.  It is found that the respondents replied on November 4, 2013 by saying that no records responsive to the request had been located. At the time of this response, the respondents believed that any responsive records had been erased because Angelillo had not been convicted of the charge for which he was originally arrested.
     7.  It is found that subsequently, in preparation for the hearing in this matter, the respondents were advised by counsel that because Angelillo had been convicted of a lesser charge, his records had not been erased.
     8.  It is found that the respondents then provided the requested records on or about May 15, 2014.
     9.  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. 
     10. 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, (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. 
     11. 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.”
     12. It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     13. It is found that the respondents’ failure to provide the requested records earlier was based on a mistaken reading of erasure law, a mistake which the respondents acknowledged and corrected when the matter was brought to the attention of counsel.
     14. It is concluded that, although the respondents’ legal mistake was not intentional and was not designed to mislead the complainant or delay his access to the records, the mistake occurred in an area of law in which the respondents are expected to be accurate, and therefore does not excuse the respondents’ failure to provide the records promptly.
     15. It is therefore concluded that the respondents unintentionally 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. Henceforth the respondents shall strictly comply with the promptness 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 August 13, 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:
James Torlai
127 Barton Street
Torrington, CT  06790
Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection, Division of State Police; and
State of Connecticut, Department of Emergency Services
and Public Protection, Division of State Police
c/o Stephen R. Sarnoski, 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/2013-713/FD/cac/8/13/2014