Final Decision FIC2013-744
In the Matter of a Complaint by
||Docket #FIC 2013-744|
Executive Director, State of Connecticut,
University of Connecticut Health Center; and
State of Connecticut, University of Connecticut
October 22, 2014
The above-captioned matter was heard as a contested case on August 28, 2014, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
Subsequent to the hearing, on September 15, 2014, the hearing officer ordered the complainant to submit additional documents. Pursuant to such order, the complainant filed an after-filed exhibit, which has been marked as follows:
Complainant’s Exhibit F: Email Exchanges (multi-page document)
(1st page is a cover letter to FOIC)
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 October 15, 2013, the complainant made a request to Scott L. Wetstone, M.D., the respondents’ Freedom of Information Officer, for the following records:
[a] Any records between January 1, 2006 and October 16, 2013
with respect to payment for legal services by or on behalf of Dr. Jay R. Lieberman from any of Dr. Lieberman’s UCHC academic accounts or otherwise by the State of Connecticut, the University of Connecticut, the University of Connecticut Health Center, or the University of Connecticut School of Medicine.
a. This request would include but not be limited to the amount paid, the date paid, the party paid, and the nature of the services provided.
b. This request would include but not be limited to the records for Dr. Lieberman’s Academic Enrichment Fund, Dr. Lieberman’s School of Medicine Fund, and any other discretionary accounts maintained by the Department of Orthopaedic Surgery or the University of Connecticut School of Medicine.
c. This request would also include all payments to Jeffrey J. Mirman, Esq. or to the legal firm Hinckley, Allen & Snyder, LLP during this time period.
[b] Any records with respect to the occurrence of oral conversations; written correspondence including but not exclusive to email, fax, or letter; or face to face meetings between Dr. Lieberman’s attorney Jeffrey J. Mirman and/or representatives of the legal firm Hinckley, Allen & Snyder, LLP, and attorney’s [sic] working for or on behalf of UCHC including Assistant Attorney General William Kleinman, Dean Frank Torti, Acting Dean Bruce Liang, and Dr. Phil Austin between September 1, 2011 and October 16, 2013.
[c] A list of all documents that you have obtained related to the above requests but were excluded and the reason they were excluded.
3. It is found that, by email dated October 16, 2013, Dr. Wetstone acknowledged, on behalf of the respondents, the complainant’s October 15th request, described in paragraph 2, above.
4. It is found that, by email dated November 18, 2013, the complainant contacted Dr. Wetstone inquiring as to the status of his October 15th request.
5. By emailed received and filed on December 3, 2013, the complainant appealed to this Commission, alleging that the respondents failed to provide access to the records, described in paragraph 2, above, in violation of the FOI Act. In his post-hearing brief, the complainant also requested the imposition of civil penalties against the respondents.
6. 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.
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 . . . (3) receive a copy of such records in accordance with section 1-212.
8. 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.”
9. 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.
10. It is found that, by email dated January 6, 2014, Dr. Wetstone informed the complainant that he had concluded his search for records and that the respondents did not maintain any documents that were responsive to the request. Dr. Wetstone also informed the complainant that any documents held in the Attorney General’s Office were outside the jurisdiction of his office since the Attorney General’s Office was a separate state agency.
11. At the hearing, the complainant argued that there was a lack of due diligence on the part of the respondents to respond to his records request. He insisted that there were records responsive to his request that the respondents should have located and provided to the complainant.
12. Dr. Wetstone contended that the steps he took to respond to the complainant’s request were prudent and diligent. He testified that he contacted (verbally or via email) the following individuals and inquired as to whether they had any records that were responsive to the complainant’s request: Kristi Gafford, on behalf of Dean Frank Torti, M.D., Dr. Phil Austin, Dr. Bruce Liang and Assistant Attorney General William Kleinman. Dr. Wetstone testified that, in the past, he has found these individuals to be credible and reliable. He testified that Dr. Torti, Dr. Austin and Dr. Liang informed him that they had no records that were responsive to the complainant’s request. Dr. Wetstone also testified that Attorney Kleinman informed him that if he had any records responsive to the complainant’s request, such records were in the custody of the Attorney General’s Office, and not with the University of Connecticut Health Center. At the hearing, Dr. Wetstone was shown certain documents by the complainant that Dr. Wetstone had not seen prior to the hearing in this matter. Dr. Wetstone acknowledged that such records, on their face, appeared to contradict what he had been told by Attorney Kleinman. Dr. Wetstone then extended an offer to the complainant to conduct an additional search for responsive records.
13. Based upon the evidence, it is found that the respondents did not promptly provide all requested records to the complainant and therefore violated the FOI Act.
14. The Commission declines to impose a civil penalty against the respondents.
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 undertake a diligent search for the requested records, and provide any located records to the complainant, free of charge, including but not limited to the records for Dr. Lieberman’s Academic Enrichment Fund, Dr. Lieberman’s School of Medicine Fund, and any other discretionary accounts maintained by the Department of Orthopaedic Surgery or the University of Connecticut School of Medicine.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 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:
85 Seymour Street
Hartford, CT 06106
Executive Director, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
c/o Stephen J. Courtney, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
UCONN Health Center
263 Farmington Avenue
Farmington, CT 06030-3803
Cynthia A. Cannata
Acting Clerk of the Commission