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Final Decision FIC2015-380
In the Matter of a Complaint by
FINAL DECISION
Bradshaw Smith,
     Complainant
     against
Docket #FIC 2015-380
Craig Cooke, Superintendent of Schools,
Windsor Public Schools; and Windsor
Public Schools,
     Respondents
January 27, 2016

     The above-captioned matter was heard as a contested case on September 18, 2015, at which time the complainant and 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.  It is found that, on May 27, 2015, the complainant made a written request to the respondents for certain records, including:  (a) all legal billings related to legal opinions relative to certain Board members’ First Amendment rights and (b) a listing of employees whose employment had been recommended not to be continued at the end of the 2014-15 fiscal year. 
     3.  By letter filed on June 3, 2015, the complainant appealed to this Commission, alleging that the respondents failed to provide copies of certain records referenced in paragraph 2, above, in violation of the Freedom of Information (“FOI”) Act.   Among other relief, the complainant requested that a civil penalty be imposed.
     4.  It is found that, by letter dated June 3, 2015, the respondents acknowledged the complainant’s record request described in paragraph 2, above, provided records responsive to the request described in paragraph 2(b), above, and stated that records responsive to the request described in paragraph 2(a), above, would be forthcoming.1

1
It is found that the complainant had not received the respondents' letter dated June 3, 2015 at the time that he filed the instant complaint with the Commission.
     5.  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.
     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 . . . (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.  It is found that, to the extent that the records identified in paragraph 2, above, exist and are maintained by the respondents, such records are public records within the meaning of §§ 1-200(5) and 1-210(a), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
     9.  At the hearing in this matter, the complainant indicated that the only records at issue were those records described in paragraph 2(a), above.
     10.  The respondents did not claim any exemption to disclosure.  Rather, the respondents asserted at the hearing that they provided a response to the complainant’s request by letter dated July 6, 2015, after the legal billing records for May of 2015 became available at the end of June, 2015. 
     11.  With respect to the request described in paragraph 2(a), above, it is found that the complainant was not provided with any records.  Rather, it is found that in its July 6, 2015 letter to the complainant, the respondents provided the total amount billed for legal fees for May 2015 related to legal counsel’s opinion relative to Board members’ First Amendment Rights.
     12.  The complainant asserts that the respondents did not fully comply with his request because copies of legal bills should have been provided, which assertion is reiterated in the complainant’s post-hearing brief.
     13.  The respondents contend that the legal billing records were not created until the end of June, 2015, which records included fees in addition to those related to legal counsel’s opinion relative to Board members’ First Amendment Rights, which is why only the total amount billed was provided to the complainant on July 6, 2015.  The respondents further contend that legal bills do not fall within the scope of the request, and that the first time such legal bills were mentioned was at the hearing in this matter.2

2
The respondents further contend that it is their common practice to provide a total amount for legal services rather than actual billing records in response to FOI requests for such records, and that billing records are only provided if a subsequent request for those records is made. While it is not necessary to make a finding regarding that practice for purposes of this complaint, the Commission merely cautions that such a practice imposes an unnecessary burden on the requestor to make multiple requests for the same records and does not comport with the spirit of the FOI Act.
     14.  Upon careful review of the complainant’s request described in paragraph 2(a), above, it is found that a fair and reasonable reading of such request; “copy of all legal billings relative to the afore mentioned request,” clearly and unequivocally encompasses legal bills.  It is found that the request was neither vague nor unclear and specifically identified the records sought.
     15.  It is found that the complainant is entitled under the FOI Act to receive copies of legal bills maintained by the respondents that are responsive to his request.
     16.  However, at the time that the complainant made his request on May 27, 2015, and then subsequently filed his complaint on June 3, 2015 with the Commission, it is found that those records described in paragraph 2(a), above, had not yet been created and therefore simply did not exist.3

3
At the request of the hearing officer, the respondents submitted an affidavit detailing the scope of the search conducted in response to the request described in paragraphs 2(a) above. Such affidavit was provided by the executive assistant to the respondent, Craig Cooke, Superintendent of Schools, dated September 28, 2015, and has been marked by the hearing officer as respondents' Exhibit No. 4 (after-filed).
     17.  It is found that the complainant’s request was not for access to inspect or to receive copies of existing records maintained by the respondents, but rather for records that had yet to be created.  In accordance with the FOI Act’s definition of a “public record,” a requestor has the right to receive records “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,” which means plainly that the record must actually exist.   See §1-200(5), G.S.  Records that do not exist cannot be “maintained or kept on file” by a public agency.  See §1-210(a), G.S.; Jane Anastasio v. Ann Clark, Superintendent of Schools, Bristol Public Schools, et al., Docket #FIC 2002-288 (January 8, 2003)(no violation where requested record “was not created until after the filing of the complaint”); Lorraine Wilmot and Jim Coll v. H. Wayne Carver, II, Chief Medical Examiner, State of Connecticut. Office of the Chief Medical Examiner, Docket #FIC 1999-507 (April 26, 2000)(“respondent was not required to comply with a request for records that did not exist at the time of the request”); Robert J. Symmes v. Charles Marino, Democratic Registrar of Voters, City of West Haven, Docket #FIC 2008-564 (March 25, 2009)(record that did not exist at the time of request was not maintained or kept on file by respondent).  A public agency is not required to create records in response to a FOI request.
     18.  It is found that the requested records described in paragraph 2(a), above, were not created until after the filing of the complaint in this matter.
     19.  Consequently, it is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S.  As there is no violation found, the complainant’s request for the imposition of a civil penalty is hereby denied.
     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 regular meeting of January 27, 2016.
__________________________
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:
Bradshaw Smith
23 Ludlow Road
Windsor, CT  06095
Craig Cooke, Superintendent of Schools, Windsor Public
Schools; and Windsor Public Schools
c/o Gary R. Brochu, Esq.
Shipman & Goodwin, LLP
One Constitution Plaza
Hartford, CT  06103

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-380/FD/cac/1/27/2016