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Final Decision FIC2011-307
In the Matter of a Complaint by
FINAL DECISION
Susan Chapman,
     Complainant
     against
Docket #FIC 2011-307
Monika Thiel, Selectman,
Town of New Fairfield,
     Respondent
April 25, 2012

The above-captioned matter was heard as a contested case on December 2, 2011, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

Prior to the contested hearing in this case, by motion dated November 30, 2011 and filed December 1, 2011, the respondent, former Selectman Monika Thiel, moved to have this case dismissed.  The respondent contended that she had provided the complainant with all of the requested records within a reasonable amount of time, and that therefore the contested case hearing was not necessary.  Based on a review of the complaint, and on representations made by the complainant, it seemed possible that there were additional responsive records in this case.  Accordingly, the motion to dismiss was denied. 

At the commencement of the contested case hearing, the complainant informed the hearing officer that the complaint in this case should have only been docketed against the former selectman and not against the entire Board of Selectmen.  Based on the complainant’s representation, the case caption has been amended to reflect that the complaint has been filed only against Respondent Thiel.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.
2. It is found that, by email dated June 6, 2011, the complainant made a request to the respondent for access to the following records: 
     a. any and all notes, emails, work product or documents that you accumulated since the February 10th Board of Selectmen (“BOS”) meeting;
     b. any handwritten notes and specifically the notebook from the BOS’s special meeting on Friday, June 3, 2011; and
     c. any communications that you have had with Steven Roe or anyone else having to do with the Communication Project. 
3. It is found that, by email dated June 9, 2011, the respondent acknowledged the complainant’s request.  It is further found that, in her acknowledgement, the respondent requested that, because the request was broad, especially as indicated in paragraph 2.a., above, the complainant be more specific about what records she was interested in reviewing. The respondent further indicated that she would need approximately two weeks to conduct an initial inventory of her records and then she would be able to provide the complainant with an estimate of how much longer it would take her to organize and compile the records for the complainant’s review. 
4. It is found that, by email dated June 9, 2011, the complainant replied to the respondent’s June 9, 2011 communication, indicating that she was expecting access to the requested records by June 13, 2011.
5. By letter dated June 14, 2011 and filed June 16, 2011, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her request for access to the records described in paragraph 2, above. 
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 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.
8.  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.”
9.  It is found that, to the extent that the respondent maintains the records described in paragraph 2, above, such records are “public records” within the meaning of §§1-210(a) and 1-212(a), G.S. 
10. It is found that the complainant is a current selectman for the BOS.
11. It is found that, by email dated June 22, 2011, the respondent again communicated with the complainant.  In this communication, the respondent indicated that she had performed an initial inventory of her records and anticipated that it would take her an additional six to eight weeks to organize, compile and copy the records in her possession.  As regards the request for her personal notes, the respondent indicated that it was her position that these records were exempt from disclosure. 
12. It is found that, by email dated July 5, 2011, the complainant again corresponded with the respondent.  In this correspondence, it is found that the complainant indicated that she was not interested in access to records that she already had, such as BOS’ agendas and minutes. It is further found that the complainant stated that, because she had yet to receive access to any of the requested records, an additional delay of six to eight weeks would be unreasonable. 
13. With regard to the first two categories of records identified in paragraph 2, above, it is found that, on August 3, 2011, the respondent provided the complainant with a package containing 63 pages of records.  It is found that this package contained the respondent’s handwritten notes for and/or from BOS meetings on February 10, 2011; February 24, 2011; March 10, 2011; March 24, 2011; April 14, 2011; May 12, 2011; and June 3, 2011.  It is further found that the package also contained copies of special meeting notices; an affidavit of publication concerning the town’s resolution to upgrade its emergency radio communication system; Connecticut Probate Court Orders; a motion filed by an assistant attorney general with a Connecticut Probate Court; notarized records from New York; maps of New York and Connecticut; as well as 3 pages of emails.   
14. It is further found that, on December 1, 2011, the respondent provided the complainant with additional responsive records.
15. It is therefore found that, even though the respondent had initially contended that her personal notes were exempt under the FOI Act, she did produce these notes to the complainant to the extent that she maintained them.  With regard to her notebooks, particularly the notebooks that she brought with her to the June 3, 2011 special meeting of the BOS, it is found that these contained handwritten questions and comments that the respondent had prepared prior to certain meetings for her own use at such meetings.  It is further found that, shortly after the June 3, 2011 meeting, the respondent discarded the notebooks and therefore she was unable to provide the complainant with access to them. 
16. Finally, with regard to the third category of records identified in paragraph 2, above--that is, emails and other communications regarding the town’s Communication Project--it is found that the respondent did not provide the complainant with access to any responsive records.
17.  It is found that, in 2011, the BOS became engaged in a project to upgrade the town’s emergency radio communications system (the “project”).  It is found that this project was undertaken, in part, because the town realized that there were gaps in its emergency communications system, which at times prevented the town’s first responders from communicating with each other.  It is found that this project required a significant town expenditure, which exceeded one million dollars. 
18.  It is further found that, at the time the project began, the respondent and two other individuals, one of whom was the First Selectman, comprised the Town of New Fairfield’s BOS.  It is further found that, while the respondent is currently no longer a selectman, at the time of the project she was a member of the BOS and received a modest salary for her service as a board member.
19. It is found that, on or around March 10, 2011, the First Selectman purchased a communications tower.  It is found that, on June 3, 2011, the BOS held a special meeting to discuss and ratify the First Selectman’s purchase of the tower.  It is found that the purchase was ratified in a two to one vote, with the respondent voting against ratification. 
20. It is further found that, shortly after the First Selectman’s purchase of the communications tower, a New Fairfield resident by the name of Steven Roe filed a lawsuit against the town.  The lawsuit primarily concerned the propriety of the First Selectman’s purchase of the tower.  It is the complainant’s contention that, subsequent to the purchase of the communications tower and around the time of the June 3, 2011 special meeting, the respondent was communicating with Mr. Roe and others regarding the purchase of the communications tower.
21. At the contested case hearing, the respondent initially conceded that her name was on a number of email lists, some of which emanated from Mr. Roe and/or from others who were against the project.  The respondent contended that her receipt of these emails did not have any direct bearing on her function as a selectman and furthermore that she deleted these emails before she looked at them.  After this initial testimony, the respondent changed her testimony, testifying that she did not receive any emails from Mr. Roe or others, and if she did, she has no recollection of receiving them.  However, later in the hearing, the respondent reverted back to her original line of testimony, again testifying that she did receive emails from private citizens, such as Mr. Roe, who wanted their opposition to the project to be heard. 
22. It is found that the respondent received emails from private citizens who were opposed to the manner in which the tower was initially purchased.  It is further found that the respondent received these emails because of her position as a member of the BOS.  It is further found that, at the time these emails were received by the respondent, she was an active member of the BOS—that is, a member of the public agency that was in the process of publically considering and ratifying the purchase of the tower.
23. It is found that the respondent exclusively used her personal laptop computer to conduct both her town business and her personal business, and received both town and personal business emails by means of the same email account.  Finally, it is found that the respondent continues to retain the laptop that she used when she was a selectman and during the time when she received the email communications in question.
24. The Commission takes administrative notice that it has previously advised parties that “the use of private or home computers by public agencies to conduct public business opens such public officials up to potential public scrutiny, including subjecting the public officials’ home computers to forensic examination.”  See Gail Anne Shea v. Planning and Zoning Comm’n, Town of Stonington, Docket #FIC 2006-679 (Oct. 24, 2007).
25. The respondent contends that, because she has deleted these emails, she is unable to provide the complainant with access to them.  In response to the respondent’s contention, the complainant made a motion to have the respondent’s laptop forensically examined so that all emails that the respondent sent to or received from Mr. Roe or others concerning the project could be retrieved.  The First Selectman, who was present at the contested case hearing, testified that the town would be willing to cover the costs associated with such a forensic examination on behalf of the complainant. 
26. The complainant’s motion for a forensic examination of the respondent’s laptop computer was not ruled on at the time of the contested case hearing. 
27. After making the motion to have the respondent’s computer forensically examined, the complainant explored alternate avenues for obtaining the emails that she wanted by examining the respondent about whether she could provide the names of other individuals, especially other public officials, who were part of the email distribution lists.  The complainant also inquired about whether the respondent could have these emails re-sent to her.  The respondent proved to be an extraordinarily evasive witness.  It was exceedingly difficult for the complainant to get the respondent to answer any questions directly.  Overall, it is found that the respondent was resistant to the efforts made by the complainant to find an alternative method for obtaining these records.
28. With regard to the timeliness issue, it is found that it initially took the respondent almost two months to provide the complainant with access to records in this case.  It is found that, with the exception of the request for emails, the records at issue in this case were at all times maintained by the respondent in the basement of her home.  It is therefore found that the respondent should not have required 58 days to assemble and provide the first package of records to the complainant, (see ¶ 13, above), or 178 days to assemble and provide the second package of records to the complainant, (see ¶ 14, above).  Accordingly, it is concluded that the respondent violated the promptness requirements of the FOI Act.  
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1.  Henceforth, the respondent shall strictly comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S.
2.  The respondent and the complainant shall forthwith confer with each other for the purpose of selecting an independent digital forensic analyst, and the respondent shall make the final selection.  The respondent shall take her personal laptop to the digital forensic analyst for the purpose of having such analyst retrieve from the laptop any and all electronic communications sent or received by the respondent concerning the Town of New Fairfield’s or the First Selectman’s purchase of a radio communications tower.  The respondent shall request that the digital forensic analyst provide her with an estimate of the cost of the retrieval service, and the complainant shall tender the estimated fee to the analyst before the forensic examination is performed.  The respondent shall provide the complainant any responsive records that the digital forensic analyst retrieves from the search. 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 25, 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:
Susan Chapman
P.O. Box 8186
New Fairfield, CT  06812
Monika Thiel, Selectman, Town of New Fairfield
c/o Edward P. Brady III, Esq.
Coyne, von Kuhn, Brady & Fries, LLC
999 Oronoque Lane
Stratford, CT  06614

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-307/FD/cac/4/25/2012