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Final Decision FIC2014-434
In the Matter of a Complaint by
FINAL DECISION
Victor Katz,
     Complainant
     against
Docket #FIC 2014-434
William Leverence, Controller, Town of
Brookfield; and Town of Brookfield,
     Respondents
May 13, 2015

     The above-captioned matter was heard as a contested case on March 24, 2015, 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 July 7, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for a certain email. The complainant requested the imposition of a civil penalty.
     3.  It is found that the complainant made a June 25, 20141 request to the Brookfield Town Clerk for the following records:

1
The request is dated July 1, 2014, but is stamped received by the Brookfield Town Clerk's office June 25, 2014.
Copies of ALL communications including, but not limited to, correspondence, emails, tele-facsimiles, memoranda or notes in the possession of Town Controller Mr. William Leverence dated June 18th, 2014, June 19th 2014, and June 20th, 2014.
     4.  It is found that the Town Clerk acknowledged the request the same day, and forwarded it to the respondent Controller at 10:42 a.m. the same day.
     5.  It is found that the respondent Controller provided all the responsive emails he had to the complainant an hour later.
     6.  It is found that the complainant was searching for a single specific email in which the respondent Leverence had himself forwarded an email he had received from a Glenn Rooney.  The complainant considered that the Rooney email disparaged the complainant as a member of the Brookfield Board of Education, and that the respondent Leverence had furthered the disparagement by forwarding it to others.
     7.  It is found that the respondents provided a copy of the Rooney email that had been sent to the Controller, but not the email from the Controller that forwarded it.
     8.  It is found that the forwarding email from the Controller contained the text: “Please support Mr. Rooney (see below).  It’s our town and our tax $$. The Board of Education meets the 3rd Wednesday of every month. Next meeting is July 16. Thank you!”
     9.  It is found that the respondent Leverence, within a day of when he forwarded the Rooney email, deleted his forwarding email from his “sent” email box, although he retained the Rooney email and subsequently provided it to the complainant.
     10. It is found that the respondent Leverence deleted the forwarding email because he considered it transitory.
     11. It is found that the respondent Leverence is meticulous about deleting emails that he believes he is not required to retain.
     12. It is found that, although the respondent Leverence deleted the forwarding email, the complainant was able to obtain it from another source.
     13. 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.
     14. 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.  (Emphasis supplied).
     15. Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     16. It is found that both the records provided to the complainant, and the deleted email, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     17. The respondents maintain that they were not required to retain the forwarding email because it was transitory, citing Municipal Records Retention Schedule M1-125, which provides, as to electronic mail messages, that there is no requirement to retain “Transitory messages (i.e., non-record material such as junk mail, publications, notices, reviews, announcements, employee activities, routine business activities, casual and routine communications similar to telephone conversations.)”
     18. It is found, based on the testimony of the respondent Leverence, that he forwarded the Rooney email as part of his duties as Controller.
     19. The Commission lacks jurisdiction to decide whether the respondents were required to retain the forwarding email.  The Commission encourages the respondents to consult with the State Records Administrator about this issue, as the forwarding email was very possibly in the category of “M1-050 Communications/Public Relations (includes speeches, press releases, remarks)” that must be retained for two years; or “M1-080 [Routine] Correspondence (in electronic or paper format)” that also must be retained for two years.
     20. Since only the records retention practices of the respondent Controller are at issue, it is concluded that the respondents did not violate the FOI Act as alleged.
     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.
     2.  The respondent Controller is encouraged to consult with the State Records Administrator.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 13, 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:
Victor Katz
26 Deer Run Road
Brookfield, CT  06804
William Leverence, Controller, Town of
Brookfield; and Town of Brookfield
c/o Thomas W. Beecher, Esq.
Collins Hannafin, P.C.
148 Deer Hill Avenue
Danbury, CT  06810
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-434/FD/cac/5/13/2015