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Final Decision FIC2011-409
In the Matter of a Complaint by
FINAL DECISION
Herbert Mitchell,
     Complainant
     against
Docket #FIC 2011-409
Human Services Administrator,
State of Connecticut, Department of
Veterans’ Affairs; and State of
Connecticut, Department of
Veterans’ Affairs,
     Respondents
May 23, 2012

     The above-captioned matter was heard as a contested case on January 24, 2012, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. 
     1.  The respondents are public agencies, within the meaning of §1-200(1), G.S.
     2.  It is found that, by letter dated May 5, 2011, the complainant requested that the respondents “retrieve all documents, e-mails, complaints, inquiries, faxes, [and] correspondence involving myself and others.  This is to include information and conversations between all CT DOVA employees and VARO Hartford personnel….This includes Governor Dan Malloy’s people, Ex. Aaron Frankel….I am looking for all DATA from June 1, 2010 to May 5, 2011 only.”

     3.  It is found that, by letter dated May 5, 2011, the respondents acknowledged receipt of the request, described in paragraph 2, above.
     4.  It is found that, by letter dated July 8, 2011, the respondents informed the complainant that no documents existed “involving you and others.”
 
     5.  By letter of complaint, dated and filed August 2, 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 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 . . . (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 the records described in paragraph 2, above, are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S. 
     10.  It is found that, by letter dated August 2, 2011, the complainant resubmitted the request, described in paragraph 2, above, and that, by letter dated August 3, 2011, the respondents requested that the complainant clarify such request.
     11.  It is found that, by letter dated August 8, 2011, counsel for the complainant requested from the respondents a copy of the complainant’s entire personnel file, and further requested that such copies be provided directly to him, rather than to the complainant.
     12.  It is found that, by letter dated September 20, 2011, the respondents provided to complainant’s counsel copies of certain records from the complainant’s personnel file, but withheld other records pertaining to a “workplace violence” investigation that was then “on-going” (“investigation records”).   It is further found that the investigation records were hand-delivered to the complainant’s union representative in January 2012.

     13.  At the hearing in this matter, the complainant argued that the respondents maintain records responsive to the request, described in paragraph 2, above, that they continue to withhold from him.  For example, the complainant stated his belief that the respondents maintain records regarding Aaron Frankel that they have not provided to him.
     14.  At the hearing in this matter, the respondent human services administrator testified that she understood the request, described in paragraph 2, above, to encompass only those records relating to communications “between the complainant and others,” and that therefore, she did not conduct a search for records pertaining only to Aaron Frankel. 
     15.  It is found that the respondents reasonably interpreted the request, described in paragraph 11, above, from the complainant’s counsel, to be a restatement or clarification of, the request, described in paragraph 2, above.  It is further found that the respondents have provided the complainant with all records they maintain concerning the complainant.
     16.  At the hearing in this matter, the complainant argued that the respondents failed to provide him with copies of the investigation records, described in paragraph 12, above, because such records were hand-delivered to his union representative, rather than to him directly.  It is found that the records were hand-delivered to the complainant’s union representative at the complainant’s Loudermill hearing.  It is found that the complainant has made no showing that his representative has withheld such records from him, and it is further found that the representative attended the hearing in this matter with, and in support of, the complainant.  Under such circumstances it is found that the respondents did, in fact, provide the complainant with copies of the investigation records in January, 2012.
     17.  The complainant also argued that the respondents improperly withheld the investigation records from him, until after they completed their “investigation.”  
     18.  It is found, consistent with the respondents’ stated position, that they withheld the investigation records solely because the investigation was not yet complete, and not because they believed the records were exempt from disclosure pursuant to any exemption set forth in the FOI Act, or elsewhere in the general statutes.   
     19.  Accordingly, it is found that the respondents did not have a statutory basis on which to withhold the investigation records from the complainant during the investigation.  Although, as noted in paragraph 12, above, the respondents eventually provided such records to the complainant, it is found that they failed to do so promptly, as required by §§1-210(a) and 1-212(a), G.S., due to the fact that they  improperly withheld the investigation records during the pendency of the investigation.
     20.  Based upon the foregoing, it is concluded that the respondents violated the promptness provisions in §§1-210(a) and 1-212(a), G.S.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  Henceforth, the respondents shall strictly comply with the promptness provisions of the FOI Act.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 23, 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:
Herbert Mitchell
11 Robertson Road
Cromwell, CT  06416
Human Services Administrator,
State of Connecticut, Department of
Veterans’ Affairs; and State of
Connecticut, Department of
Veterans’ Affairs
c/o Tanya Feliciano DeMattia, Esq.
Assistant Attorney General
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT  06141

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-409/FD/cac/5/23/2012