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Final Decision FIC2014-098
In the Matter of a Complaint by
FINAL DECISION
Patricia Cofrancesco,
     Complainant
     against
Docket #FIC 2014-098
Administrator, Water Pollution
Control Commission, City of
West Haven; Water Pollution
Control Commission, City of
West Haven; and City of West
Haven,
     Respondents
February 4, 2015

     The above-captioned matter was heard as a contested case on September 3, 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 dated December 23, 2013, the complainant made a request to the respondents for copies of the following:  “Any and all documents reflective of the overtime at your facility and/or an overtime list for calendar year 2013.”
     3.  It is found that the complainant was specifically seeking records that reflected the manner in which overtime hours were distributed among union employees by the union president, or his designee, pursuant to their contract.
     4.  It is found that upon receiving the complainant’s December 23, 2013 records request, the respondent administrator requested the records from a Mr. Anastasia Marnerakis who generates and maintains the requested records.  It is found that Mr. Marnerakis compiled the records and that by letter dated January 30, 2014, the respondents provided the complainant with the documents that Mr. Marnerakis claimed were responsive to the complainant’s request.
     5.  It is also found that when the respondent administrator was informed by the complainant that certain months were missing and that the records provided were not copies of the original records, he asked Mr. Marnerakis about the missing records and was told that all responsive records were provided, that there were no others, and that some may have been inadvertently thrown away or lost.
     6.  By letter dated February 12, 2014 and filed on February 18, 2014, the complainant appealed to this Commission alleging that the respondents had violated the Freedom of Information (“FOI”) Act by failing to fully comply with her request.  The complainant specifically alleged that:
a. “the respondents’ alleged compliance was missing documents for the months of December [of] 2012, and January, August, September, October, and November [of] 2013;” and
b. that regarding “those documents that were provided, the same were redundant, confusing, and unintelligible, thereby calling into question their status as contemporaneous business records.”
     7.  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.
     8.  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.
     9.  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.”
     10. By way of background, it is found that pursuant to the contract between the AFSCME Local 1303-345 Union (hereinafter “the Union”) and the respondent City of West Haven (hereinafter “the City”), Article 20 Section 41, the distribution of any available overtime among the bargaining unit employees is solely within the purview of the Union president or his/her designee.  It is found that the Union established the protocol for distributing overtime hours which is based in part on seniority, and is solely responsible for its implementation.  It is found that the requested records are generated during the course of the Union president’s, or his/designee’s, implementation of the protocol for distributing overtime hours among the bargaining unit employees. 

1
Article 20 Section 4 of the collective bargaining agreement between AFSCME Local 1303-345 and the City of West Haven provides in relevant part "Supervisors shall notify the Union president or designee of all overtime assignments. The Union shall distribute the overtime as equitably as practicable among the bargaining unit employees holding the same job classification affected by the overtime assignment."
     11. At the hearing on this matter, the respondents claimed that:
a. there are no other records responsive to the complainant’s request;
b. even if more responsive records existed, the records are not public records within the meaning of  §1-200(a), G.S., because they belong to the Union which is not a public agency; and
c. they only obtained the records for the complainant in a spirit of good will and cooperation.
     12. However, the complainant contended at the hearing that the respondents’ claims are disingenuous and that because the records relate to the conduct of the public’s business, were prepared and retained by a city employee, and involve the expenditure of tax dollars, they are public records within the meaning of §1-200(a), G.S.
     13. However, the respondent administrator testified credibly, and it is found, that the complainant was provided with all the records responsive to her request that exist and that any other records that may have existed have either been destroyed or lost.  It is found that there are no other records.
     14. Therefore, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant.2

2
Since no practical relief can be granted to the complainant, it is unnecessary to, and the Commission will not, address whether the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212, G.S.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its special meeting of February 4, 2015.

__________________________
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:
Patricia Cofrancesco
89 Kimberly Avenue
East Haven, CT  06512
Administrator, Water Pollution Control Commission,
City of West Haven; Water Pollution Control
Commission, City of West Haven; and City
of West Haven
c/o Henry C. Szadkowski, Esq.
Office of the Corporation Counsel
355 Main Street
West Haven, CT  06516
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-098FD/cac/2/4/2015