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Final Decision FIC2011-239
In the Matter of a Complaint by
FINAL DECISION
Robert Kalechman,
     Complainant
     against
Docket #FIC 2011-239
First Selectman, Town of
Simsbury; and Town of
Simsbury,
     Respondents
March 14, 2012

The above-captioned matter was heard as a contested case on January 20, 2012, 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, by letter dated April 28, 2011, the complainant wrote to the respondent selectman concerning the Simsbury Performing Arts Center (“PAC”) and requested records “regarding the Fifty Five Thousand Dollar slush fund which the PAC Board…wants you to declare as non taxpayers money.”  Additionally, the complainant requested “the dollar amounts pertaining to the in kind service which is given to the [PAC] as in kind town services which has a dollar value of which I am requesting.”  The complainant specifically requested the in-kind services provided by the Parks and Recreation Department, the Police Department, the Fire Department, and any town personnel.  Finally, the complainant requested any payments or gratuities given to the PAC Board members.
3.  It is found that, by letter dated May 2, 2011, the respondent town’s Director of Administrative Services (“director”) replied to the complainant’s letter of April 28, stating “Your request for information about the [PAC] was received by the First Selectman’s office on Friday, April 29, 2011.  Our intention is to respond to your request as promptly as possible.”  It is further found that the director then asked that the complainant clarify the type of information being sought and the time period he was seeking.   
4.  It is found that the complainant did not respond to the director’s letter of May 2, but rather, by letter dated May 6, 2011 to the respondent selectman, informed her that he assumed that she did not intend to provide the requested information.
5.  By letter postmarked May 9, 2011, and filed with the Commission on May 10, 2011, the complainant alleged that the respondents violated the Freedom of Information (“FOI”) Act by ignoring his request of April 28, 2011, and denying him the records he seeks.  
6.  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.
7.  Section 1-210(a), G.S., provides in relevant part:
     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…receive a copy of such records in accordance with section 1-212. 
8.  Section 1-212(a), G.S., provides in relevant part: “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record….” 
9.  It is found that, to the extent the respondents maintain the records requested by the complainant, such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
10.  At the hearing in this matter, the complainant contended that since the respondent selectman neither personally responded to the complainant, nor personally informed him that she had designated the director to act on her behalf, that she did not comply with his request.  However, it is concluded that nothing in the FOI Act prevents a public official such as the respondent selectman from delegating the responsibility of responding to a records request.   Moreover, it is found that a fair reading of the May 2, 2011 letter described in paragraph 3, above, related the fact that the director was responding on behalf of the respondent selectman.
11.  It is found that, by letter dated May 9, 2011, prior to the filing of the complaint, the director informed the complainant that records responsive to his request were available for review.  It is found that such records included the financial reports for the PAC for the years 2008, 2009, and 2010, which included the town employee in-kind services referenced in the complainant’s request, as well as police department records reflecting their payment for services rendered in connection with the PAC.  It is also found that the director informed the complainant that the town does not make payments or provide gratuities to the PAC.  Finally, it is found that the director informed the complainant that, if he wished copies of such records, they would be provided for a copying fee.
12.  It is found that the complainant did not visit Town Hall to inspect the records which had been compiled for him.
13.   It is found that, by letter dated May 12, 2011 to the respondent selectman, the complainant referenced his April 28 letter and stated that what he had requested was information regarding a town account providing seed money for the PAC which the town has replenished over the years. 
14.  It is found that, by letter dated May 18, 2011, the director replied to the May 12 letter described in paragraph 13, above, and stated the following: “If I understand your letter correctly, you are asking for any record of Town funds being transferred into accounts maintained for the …[PAC] and any records of funds being transferred back to the Town.  You specifically reference “seed money” in the amount of $55,000 transferred to the PAC.”   It is further found that the director informed the complainant that he had asked the town’s finance department to review audit information for any information responsive to the May 12 request, and that he would contact the complainant with the Finance Department’s response.
15.  It is found that, by letter dated July 20, 2011, the director forwarded to the complainant the records which had been compiled for him in May, and also informed the complainant that the Finance Department had conducted an exhaustive review of the PAC financial records and that there is no evidence that town monies had ever been transferred to the PAC, thus there were no records to produce regarding the May 12 request.
16.  It is found that the respondents promptly provided the complainant with all existing records which had been requested on April 28.  It is further found that no records exist which are responsive to the May 12 request.
17.  Based upon the facts and circumstances of this case, it is concluded that the respondents did not violate the FOI Act, as alleged in the complaint.

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 March 14, 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:
Robert Kalechman
971 Hopmeadow Street
Simsbury, CT  06070
First Selectman, Town of Simsbury; and
Town of Simsbury
c/o Robert M. DeCrescenzo, Esq.
Updike, Kelly & Spellacy, P.C.
100 Pearl Street
P.O. Box  231277
Hartford, CT  06123-1277
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-239/FD/cac/3/14/2012