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Final Decision FIC2014-260
In the Matter of a Complaint by
FINAL DECISION
Marissa Lowthert,
     Complainant
     against
Docket #FIC 2014-260
Gary Richards, Superintendent of
Schools, Wilton Public Schools; and
Wilton Public Schools,
     Respondents
February 25, 2015

     The above-captioned matter was heard as a contested case on December 8, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC 2014-265; Marissa Lowthert v. Gary Richards, Superintendent of Schools, Wilton Public Schools, Cheryl Jensen-Gerner, Principal, Miller Driscoll School, Wilton Public Schools, and Wilton Public Schools; Docket #FIC 2014-276; Marissa Lowthert v. Gary Richards, Superintendent of Schools, Wilton Public Schools, Cheryl Jensen-Gerner, Principal, Miller Driscoll School, Wilton Public Schools, and Wilton Public Schools; and Docket #FIC 2014-289; Marissa Lowthert v. Gary Richards, Superintendent of Schools, Wilton Public Schools, and Wilton Public Schools.
     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 April 2, 2014, the complainant sent the following request for records to the Assistant Superintendent for Special Services at Wilton Public Schools:
[C]ould you please send me a copy of the Child Find Policy for WPS and Miller-Driscoll?  If no such policy exists for WPS or Miller-Driscoll, please advise.
(Bold and underline in original)
     3.  It is found that, by email dated April 3, 2014, the complainant again sent the request referenced in paragraph 2, above, to the Assistant Superintendent for Special Services, and also forwarded the request to Gary Richards, the former Superintendent of Wilton Public Schools.
     4.  By email dated and filed May 1, 2014, the complainant appealed to the Commission, alleging that Superintendent Richards violated the Freedom of Information Act (“FOI Act”) by denying her a copy of the requested record.  In addition, the complainant requested that the following remedies be imposed against the respondents:  first, that the  Commission order the respondents to provide the requested record to the complainant, or to acknowledge that no such record exists; second, that the Commission impose the maximum civil penalty against Superintendent Richards for withholding a public record; and third, that the Commission admonish Superintendent Richards for failing to discharge his lawful obligations under the FOI Act. 
     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, 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.
     6.  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 . . . .
     7.  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.”
     8.  Section 1-206(a), G.S., provides that:
Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request. . . .  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.
     9.  It is found that the respondents do not maintain the requested record described in paragraph 2, above.  It is further found that, by letter dated November 7, 2014, in addition to addressing several other complaints filed by the complainant against various public agencies with the Town of Wilton, the respondents informed the complainant that “neither Wilton nor the Miller Driscoll Elementary Schools has [the requested] written policy.” 
     10. It is the complainant’s position that the respondents should have an affirmative obligation to inform her promptly that they did not maintain the requested policy, and that their November 7th letter cannot be considered a prompt response. 
     11. While the FOI Act does require that a public agency provide a requester with copies of or access to non-exempt public records in its possession promptly, or to provide a requester with a written response denying a request for public records within four business days, there is no requirement that a public agency inform a requester that it does not maintain records within the scope of a request.  See Smith v. Freedom of Info. Comm’n, Docket No. CV-11-5015510-S, 2012 Conn. Super. LEXIS 2224, at *7-8 (Conn. Super. Ct. Aug. 30, 2012) (“Smith”). 
     12. The complainant contends that Smith should be overturned because it is bad public policy to allow a public agency to remain silent, rather than requiring it to affirmatively state that it does not maintain or keep on file records that have been requested. 
     13. This Commission declines to “overrule” its decision in Smith, which decision was sustained by the Superior Court. 
     14. Based on governing law, it is concluded that the respondents did not violate any provision 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.  The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 25, 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:
Marissa Lowthert
90 Keelers Ridge
Wilton, CT  06897
Gary Richards, Superintendent of Schools, Wilton Public
Schools; and Wilton Public Schools
c/o Anne H. Littlefield, Esq.
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, CT  06103
and
Jessica Richman Smith, Esq.
Shipman & Goodwin LLP
300 Atlantic Street
3rd Floor
Stamford, CT  06801

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-260/FD/cac/2/25/2015