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Final Decision FIC2011-182
In the Matter of a Complaint by
FINAL DECISION
Nancy Burton,
     Complainant
     against
Docket #FIC 2011-182
Daniel Esty, Commissioner,
State of Connecticut,
Department of Environmental Protection; and
State of Connecticut,
Department of Environmental Protection,1
     Respondents
January 11, 2012

1
As of July 1, 2011, pursuant to Public Act 11-80, An Act Concerning the Establishment of the Department of Energy and Environmental Protection and Planning for Connecticut's Energy Future, the Department of Environmental Protection and the Department of Public Utility Control were merged to create the Department of Energy and Environmental Protection.

The above-captioned matter was heard as a contested case on August 31, 2011, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the request of Nancy Burton, with no objection from the respondents, the case caption has been amended to substitute her as the only complainant.
After the hearing on this matter, the complainant moved to admit two after-filed exhibits, which are marked as follows: 
Complainant’s Exhibit E, Series of Email Exchanges (all dated March 25, 2011), for  identification purposes only.
Complainant’s Exhibit F, Series of Email Exchanges (most recent email dated April 1,  2011), for identification purposes only
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 March 30, 2011, the complainant made a request to the respondents for:
     All records, data and analysis of [1] radiation monitoring for potential fallout from the Fukushima Daiichi nuclear disaster, either performed by DEP or received by DEP, within the boundaries of the state of Connecticut and offshore, including air, water, milk, food products and soil, from March 11, 2011 to the present day, as well as [2] any announcements issued to the news media by your office with regard to the Fukushima nuclear disaster.
     It is also found that such request was addressed to the respondent Commissioner with a carbon copy to the Commissioner’s executive assistant.

3. By letter dated April 7, 2011, and filed on April 8, 2011, the complainant appealed to the Commission, alleging that the respondent Commissioner violated the Freedom of Information (“FOI”) Act by failing to respond and comply with the request described in paragraph 2, above.  The complainant also requested the imposition of civil penalties against the respondent Commissioner.
4. 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.
5. 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 . . . or (3) receive a copy of such records in accordance with section 1-212.
6. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
7. It is found that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.
8. It is found that, by email dated April 7, 2011, the complainant forwarded a copy of her complaint and March 30th request, described in paragraphs 2 and 3, above, to the respondents.  It is found that such email was addressed to the respondent Commissioner with a carbon copy to the Commissioner’s executive assistant, who forwarded the email to the respondents’ Office of Legal Counsel for handling.
9. It is found that, by email dated April 7, 2011, the respondents’ Office of Legal Counsel explained to the complainant that the respondents did not acknowledge her March 30th request earlier due to an inadvertent oversight, and that it was the filing of her April 7th appeal with the Commission that brought her request to their attention.  It is further found that the Office of Legal Counsel informed the complainant that her request was forwarded to pertinent staff for immediate processing and that responsive documents would be gathered from on-site and off-site locations and available for her inspection on April 14, 2011.  It is also found that the Office of Legal Counsel notified the complainant that information regarding radiation monitoring reports could be found on the Environmental Protection Agency’s website as well as on the respondent Department of Environmental Protection’s website.       
10. It is found that the respondent Commissioner began his position with the respondent Department of Environmental Protection “(DEP)” on March 8, 2011.  It is also found that at the time of the complainant’s request, personnel responsibilities were in a state of flux as the agency transitioned from one commissioner to another. 
11. It is found that the search for records responsive to the complainant’s request was handled by several individuals employed in various divisions of the respondent DEP, including, but not limited to, the respondent Commissioner’s executive assistant, the Office of Legal Counsel, the Division Director and the Supervising Radiation Control Physicist in the Radiation Division of the Bureau of Air Management, and the Director of the Office of Communications.  It is also found that most of the information sought by the complainant was actively being utilized by DEP personnel and was not contained in a centralized location.
12. It is found that, by email dated April 11, 2011, the respondents’ Office of Legal Counsel notified the complainant that the respondents did not issue any formal announcements regarding the Fukushima nuclear disaster, and therefore, there were no documents responsive to the portion of the request described in section [2] of paragraph 2, above.  Accordingly, it is found that the respondents did not maintain or keep on file copies of records responsive to such request. 
13. It is concluded that the respondent did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S. with respect to the request for announcements regarding the Fukushima nuclear disaster, described in paragraphs 2 and 12, above.
14. It is also found that the respondent Commissioner did not personally have any responsive records to the complainant’s March 30th request.  It is found, however, that the respondents’ Radiation Division, within two weeks of the complainant’s March 30th request, and within one week of their receipt of the complainant’s April 7th complaint, located hundreds of pages of documents responsive to the complainant’s request described in section [1] of paragraph 2, above.  It is further found that these records were made available for inspection on April 14th as described in paragraph 9, above. 
15. It is found that the complainant did not appear at the April 14th inspection date to review the responsive records described in paragraph 14, above.  It is also found that, by email dated April 14, 2011, the complainant notified the respondents that she was unaware of the invitation to review documents on April 14th.  It is found that the respondents then provided the complainant with several alternate inspection dates, including April 28, 2011, at which time the complainant inspected the responsive records.
16. At the hearing, although not previously communicated to the respondents, the complainant stated that she believed that there may be some records missing.  It is found however that the crux of the complainant’s complaint is not an alleged failure by the respondents to provide her with records, but rather the alleged failure of the respondent Commissioner to personally respond and comply with her FOI request and to personally provide an explanation for such alleged failure.  The complainant believed that since her March 30th FOI request was addressed to the respondent Commissioner, he was obligated to personally respond and comply with her request.
17. It is found that nothing in the FOI Act prohibits the respondent Commissioner from delegating the responsibility of responding to and complying with FOI requests to a specific employee or employees and such delegation does not inherently deny prompt access to inspect or to receive copies of public records.  See Docket # FIC 2003-054; Edward A. Peruta v. Rock Regan, Chief Information Officer, State of Connecticut, Department of Information Technology; and Nuala Forde, Communications Director, State of Connecticut, Department of Information Technology; Docket # FIC 2003-079; Edward A. Peruta v. Rock Regan, Chief Information Officer, State of Connecticut, Department of Information Technology; and Nuala Forde, Communications Director, State of Connecticut, Department of Information Technology.   
18. It is found that the respondents performed a diligent search for records responsive to the complainant’s request and that they did not unduly or unreasonably delay complying with such request.  It is found that no evidence was presented suggesting that the two-day delay in acknowledging the complainant’s request was anything other than inadvertent.
19. It is further found that there was no express denial at any time of the complainant’s request for records.  To the contrary, the respondents’ April 7th email, described in paragraph 9, above, expressed a willingness to provide the requested records.
20. It is found that, under the facts and circumstances of this case, the respondents’ provision of the requested records ¬was prompt within the meaning of §1-210(a), G.S.
21. It is concluded that the respondents did not violate the disclosure provisions of
§§1-210(a) and 1-212(a), G.S. 
22. There is no basis for the imposition of a civil penalty in this matter.

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 11, 2012.
__________________________
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:
Nancy Burton
147 Cross Highway
Redding Ridge, CT  06876
Daniel Esty, Commissioner, State of Connecticut,
Department of Environmental Protection; and
State of Connecticut, Department of Environmental Protection
c/o Melinda M. Decker, Esq.
State of Connecticut, Department of Environmental Protection
79 Elm Street
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-182/FD/cac/1/11/2012