Final Decision FIC2015-371
In the Matter of a Complaint by
||Docket #FIC 2015-371|
First Selectman, Town of Andover;
Collector/Treasurer, Town of Andover;
and Town of Andover,
January 27, 2016
The above-captioned matter was heard as a contested case on September 17, 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.1
Due to the sometimes different allegations relating to the respondents, they will be referred to individually at certain points throughout this Report.
2. It is found that, on April 23, 2015, the complainant made a written request to the respondent First Selectman for certain records related to various projects being considered by the town of Andover. Specifically, the complainant requested the following records:
a. Any and all record(s), letters, documentation, written or other evidence of approval ‘by the Town’s Building Department,’ per the following statement in a letter from Robert F. Burbank First Selectman to Secretary Benjamin Barnes, Office of Policy & Management dated July 8, 2013 . . . ‘The proposed area and a preliminary design have already been approved by the Town’s Building Department;’
b. A ‘road plan’ effectively described by Andover First Selectman Robert Burbank during a budget workshop Special Meeting of the Andover Board of Selectman during the morning of February 3, 2015 at the Town of Andover office as a ‘rating of roads as to what needs to be done and when;’ and
c. Any and all project and contract files involving CLA engineers including engineering firm search, request for and submittal of proposals, firm selection, soccer field search, investigation, survey, wetlands delineation, design, and any other related work.
3. It is found that, on April 23, 2015, the complainant also made a written request to the respondent Collector/Treasurer for certain records related to payments made to CLA Engineers. Specifically, the complainant requested the following records:
a. Copies of invoices and/or request(s) for payments distributed to Andover Selectmen during the Special meeting on 4/8/2015 for which the Board of Selectmen authorized payment to CLA Engineers of Norwich, CT; and
b. Any other invoices, request for payments or records thereof, and/or payments, to or received from CLA Engineers since 01/01/2015.
4. It is found that, on April 30, 2015, the complainant inquired about the status of his requests and received verbal confirmation from the respondents that no responsive records had yet been identified.
5. It is found that, by letter dated May 5, 2015, the respondent First Selectman acknowledged the complainant’s records request described in paragraph 2, above, and informed him that there were no responsive records in his possession. In that same letter, it is found that the respondent made several assertions, including that the complainant had previously been “given access and reviewed documents relating to this project,” and that his record request was “frivolous and an attempt to create additional work for the town staff.”
6. By letter filed on May 29, 2015, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information Act by failing to allow the complainant to inspect and/or copy the requested records described in paragraphs 2 and 3, above, within four (4) days of the request, thereby constituting a denial pursuant to §1-206(a), G.S.
7. 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.
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 . . . (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. It is found that, to the extent that the records identified in paragraphs 2 and 3, 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.
11. The respondents did not claim any exemption to disclosure. Rather, the respondents asserted at the hearing that all responsive records, which they maintain were provided to the complainant.
12. With respect to the records described in paragraph 2, above, the complainant indicated at the hearing in this matter that the only records at issue were those records described in paragraph 2(c), above.
13. With respect to the records described in paragraph 2(c), above, for “all project and contract files involving CLA engineers” it is found that the respondent First Selectman reviewed his files and determined that he does not maintain any responsive documents. It is further found that another elected official with the town of Andover, the town clerk, who is neither under the supervision nor control of the respondent First Selectman, maintains records responsive to the complainant’s request.2
2The Commission notes that certain records described in paragraph 2(c), above, came within the purview of the request described in paragraph 3, above, and were provided to the complainant by the respondent Treasurer/Collector.
14. Based on the credible testimony presented at the hearing, it is found that the respondent First Selectman did not maintain records that were responsive to the complainant’s request as detailed in paragraph 2(c), above.
15. It is therefore concluded that, with respect to those records described in paragraph 2(c), above, the respondents did not violate §§1-210(a) and 1-212(a), G.S.
16. With respect to the request described in paragraph 3, above, the complainant indicated at the hearing that he had subsequently received responsive records, and that the only matter at issue with respect to that specific request was promptness.
17. The Commission has previously opined that the word “promptly” in §1-210, G.S., means “quickly and without undue delay, taking into account all of the factors presented by a particular request . . . [including] the volume of statements requested; the amount of personnel time necessary to comply with the request; the time by which the requester needs the information contained in the statements; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without loss of the personnel time involved in complying with the request.” See FOI Commission Advisory Opinion #51 (Jan. 11, 1982). The Commission also recommended in Advisory Opinion #51 that, if immediate compliance is not possible, the agency should explain the circumstances to the requester.
18. It is found that the complainant received the requested records described in paragraph 3, above, from the respondents on June 18, 2015—that is, fifty-six (56) days after the respondents received the complainant’s April 23, 2015 request.
19. At the time the request was made, it is found that several issues contributed to the almost two (2) month delay in providing responsive records described in paragraph 3, above, to the complainant, including that the respondent Treasurer/Collector was on medical leave for an extended period of time; the Assistant Treasurer was recovering from an injury that limited her mobility and the First Selectman was caring for an ailing family member.
20. In addition to testimony offered by the respondents to explain the delay in providing the responsive records described in paragraph 3, above, the complainant testified, and it is found, that following his request, the Treasurer/Collector and Assistant Treasurer left their positions with the town of Andover following the May 5, 2015 municipal elections. It is further found that it was a volunteer, who was providing part-time support in the Treasurer/Collector’s office following those departures, who provided the complainant with responsive records on June 18, 2015.
21. Based on all of the unique contributing factors presented in conjunction with the complainant’s request, it is found that the respondents promptly complied with the request at issue herein.
22. Consequently, it is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., with respect to the request described in paragraph 3, above.
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:
143 Hebron Road
Andover, CT 06232
First Selectman, Town of Andover; Collector/Treasurer,
Town of Andover; and Town of Andover
c/o Dennis O’Brien, Esq.
O’Brien & Johnson
120 Bolivia Street
Willimantic, CT 06226
Cynthia A. Cannata
Acting Clerk of the Commission