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Final Decision FIC2011-349
In the Matter of a Complaint by
FINAL DECISION
Keyin T. Worth,
     Complainant
     against
Docket #FIC 2011-349
Zoning Enforcement Officer, Town of
Barkhamsted; Inland Wetlands
Commission, Town of Barkhamsted;
Planning and Zoning Commission,
Town of Barkhamsted; and Town
of Barkhamsted,
     Respondents
April 25, 2012

The above-captioned matter was heard as a contested case on October 20, 2011, at which time the complainant and the respondents appeared 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, in March 2010, the inland wetlands enforcement officer issued a Cease and Correct Order (Order) to the complainant requiring her to remove all trees, branches, twigs, dirt and other materials that she had placed in the “river” behind her home.  It is found that a Show Cause Hearing was held, and in July 2010, the respondent Inland Wetlands Commission (IWC) upheld the Order.  It is found that, following noncompliance by the complainant with the Order, the respondents initiated legal action in superior court to enforce it.
3.  It is found that, by letters dated December 1, 2010, May 12, 2011, and two different letters dated June 10, 2011,1  the complainant made requests to the respondents for copies of records related to her property and her neighbor’s property in Barkhamsted.  Specifically, in the December and June letters, it is found that the complainant requested copies of all records indentifying, as described in the Order, where the “river” is located on her property, the name of the “river”, and where the “river” begins and ends.  It is found that, in the May 12th letter and in one of the June letters, the complainant requested all records that would identify “where and what the ‘swale’ was and is on and at 309 New Hartford Road,” and records that would demonstrate that it had ‘been in place for many years’ as indicated in your letter.”

1
The two June 10, 2011 letters were resent via fax to the respondents on July 1, 2011.
4.  It is found that, in response to the complainant’s December 1, 2010 request for records pertaining to the “river,” the respondents informed the complainant, by letter dated December 13, 2010, that the word “river,” as used in the Order, should have been “brook,” and that the name of that waterway is Mallory Brook.  The respondents further informed the complainant that the brook is shown on the Barkhamsted CT Wetlands Soil map (wetlands soil map), available for a fee of $5.00, and on the Barkhamsted Parcel and Zoning Map, available for a fee of $1.00.  It is found that the respondents previously had provided the complainant with a copy of the wetlands soil map.
5.  It is found that, in response to the complainant’s remaining requests for records pertaining to the both the “river” and the “swale,” the respondents, by letter dated June 28, 2011, informed the complainant that, although they had previously provided her with copies of the entire file for both her property and her neighbor’s property, they would again provide copies at a cost of $.50 per page, or approximately $20.00.  It is found that the respondents, in their June 28th letter, again informed the complainant that their “records do not indicate a river, just a watercourse as defined in CGS [§] 22a-38.”  It is found that, in addition, the respondents informed the complainant that her request for records pertaining to the “swale” was “beyond the scope of FOIA” because it constituted research. 
6.  It is found that the respondents sent the June 28th letter, described in paragraph 5, above, to the complainant via certified mail, and that, although the post office made three attempts to deliver such letter, the complainant did not pick it up from the post office. 
7.  By letter of complaint, undated, but filed July 7, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the requests for records described in paragraph 3, above. 
 
8.  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.
9.  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.
10.   Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
11.    It is found that, to the extent that the respondents maintain the records described in paragraph 3, above, they are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), and must be disclosed unless they are exempt. 
12.  It is found that the respondents have provided the complainant with all records maintained by them pertaining to her property and to her neighbor’s property.
13.  It is found that the zoning enforcement officer used the term “river” in the Order mistakenly, to describe the waterway in the complainant’s backyard, and that such mistake was clarified in the respondents’ December 1, 2010 and June 28, 2011 letters to the complainant.  Despite the respondents’ letters to her, and having received from the respondents copies of all records maintained by them pertaining to her property, the complainant contended, at the hearing in this matter, that she received no response to her requests for records.  Upon cross examination, the complainant admitted she received the December 13th letter from the respondents, but stated that the respondents never told her that they had mistakenly used the word “river” in the Order, and never told her that they therefore do not have records to indicate that there is a “river” in her backyard.
14.  It is found that the only reasonable interpretation of the respondents’ December 1st and June 28th letters to the complainant, is that such letters are, in part, an explanation by the respondents that the watercourse behind her home was incorrectly described as a “river”, but is, in fact, a brook, and that, accordingly, there are no records to indicate the location of a “river” on her property, where it begins and ends, or the name of the “river.”
15.  Based upon the findings in paragraphs 13 and 14, above, it is concluded that the respondents did not violate the FOI Act, as alleged, with regard to the requests for records pertaining to the “river.”
16.  With regard to the requests for records pertaining to the “swale,” it is found that the respondents do not maintain an index of records indicating the presence of “swales” on any particular property. 
17.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged with regard to the requests for records pertaining to the “swale.”
18.  At the close of the hearing in this matter, the respondents requested that the Commission impose sanctions against the complainant because she has made repeated FOI requests related to the underlying property dispute, and failed to appear at several scheduled meetings of the IWC at which the Order was to be discussed.   The Commission declines to consider the imposition of sanctions against the complainant in this particular case, as the respondents have not shown that the complainant brought the instant appeal for the sole purpose of “harassing the agency.”  See §1-206(b)(2), G.S.
 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 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:
Keyin Worth
11 Village Drive
Wolcott, CT  06716
Anthony DiMarco, Esq.
218 Providence Street
Putnam, CT  06260
Zoning Enforcement Officer, Town of
Barkhamsted; Inland Wetlands
Commission, Town of Barkhamsted;
Planning and Zoning Commission,
Town of Barkhamsted; and Town
of Barkhamsted
c/o Andrew C. Glassman, Esq.
Pullman & Comley, LLC
90 State House Square
Hartford, CT  06103
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-349/FD/cac/4/25/2012