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Final Decision FIC2011-414
In the Matter of a Complaint by
FINAL DECISION
Steven Edelman,
     Complainant
     against
Docket #FIC 2011-414
Neal Beets, Town Manager,
Town of Windham; Town Clerk,
Town of Windham; and Town of
Windham,
     Respondents
May 9, 2012

The above-captioned matter was heard as a contested case on December 7, 2011, at which time the complainant appeared and presented testimony, exhibits and argument on the complaint.  The respondents did not appear. 
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, pursuant to an oral request made on or about June 30, 2011, the complainant was permitted to inspect the building permit receipts maintained by the respondent town clerk.  It is found that the receipts are kept in volumes of receipt books and that, upon review of the books, the complainant discovered that the books contained no records before the year 2003.
3.  It is found that the complainant then requested to inspect what he described as “the State Librarian’s written authorization” to destroy the permit receipts for the years prior to 2003.  It is found that a search for such authorization was conducted and, while the respondents maintain copies of authorizations to destroy public records in an organized manner, no authorization to destroy the building permit receipts for the period of January 1, 1994 through December 31, 2002 was found.
4. It is found that by e-mail dated July 1, 2011, the complainant made a request to the respondent town clerk as follows:
     “Would you please confirm that the Town of Windham cannot locate either:
     1.) Building Department permit receipt books from before 2003; or
     2.) A State Librarian document destruction authorization for Building Department receipts issued after 1993.”
5.  It is found that because he received no response to his e-mail, the complainant submitted a July 13, 2011 letter to the respondent town clerk asking to inspect “State Librarian document destruction authorizations that would encompass building permit receipt books for the period of January 1, 1994 through December 31, 2002.  It is found that he also submitted a July 13, 2011 letter to the building official asking to inspect “building permit receipt books for the period from January 1, 1994 through December 31, 2002.”
6. It is found that by letter dated July 18, 2011, to the complainant the respondent town manager stated the following:
     1) “We are unaware of your referenced authorization issued by the State Librarian covering the documents and times you mention.  Naturally, you are free to check with the State Librarian.
     2) As you know, on the day you came into the offices we provided you with the opportunity to review various files that may contain the documents you seek.  Our understanding is that you were unable to find the documents you sought.  At the present time, we are unable to identify any other place where these documents may be.” 
7. After a series of letters between the complainant and the respondents, the complainant appealed to this Commission, by letter dated August 11, 2011, alleging that the respondents violated the Freedom of Information (“FOI’) Act by failing to provide him with an accurate and forthright response to his July 13, 2011 requests.  The complainant requested that the Commission impose the maximum civil penalty against the respondent town manager.
8. At the hearing on this matter, the complainant explained that he simply wanted the respondents to confirm in a straightforward manner whether the receipt books that contained the building permit receipts from January 1, 1994 through December 31, 2002 could not be found or whether the town had received authorization from the records retention officer to destroy those records and maintained a record to that effect.
9. 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. 
10. 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 . . . receive a copy of such records in accordance with section 1-212. 
11. It is found that the requested records, to the extent they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
12. It is found that the respondents, who were absent from the hearing on this matter, provided no evidence to explain or contradict the complainant’s statement of the facts. 
13.  It is found that when the complainant was not able to find building permit receipts for any period prior to 2003, there was a diligent search for both those records and a written authorization from the state records retention officer to destroy them.  It is found that neither the building permit receipts, or a written authorization to destroy them, could be found.
14. It is found that all of the respondents’ responses, while arguably not as clear and forthright as they could have been, indicate that neither the building permit receipts prior to 2003 or a written authorization to destroy them, could be found by the respondents.
15. It is found that neither the building permit receipts from January 1, 1994 through December 31, 2002, nor a written authorization to destroy them, exist.
16. With respect to the complainant’s specific complaint, it is also found that the FOI Act does not require a public agency to inform a requester in writing that there are no responsive records.  See Docket # FIC 2007-574; Bradshaw Smith v. Elizabeth E. Feser, Superintendent of Schools, Windsor Public Schools; Milo W. Peck, Paul J. Panos, as Members, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools; and Docket #FIC 2011-104; Anthony Torres v. Joan Ellis, Freedom of Information Administrator, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction.
17. Consequently, the respondents did not violate the FOI Act as alleged by the complainant.
18. The Commission declines to consider the complainant’s request for civil penalties.

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.

2. While not raised in the complaint in this matter, the Commission notes that whether the respondents destroyed public records without proper authorization from the state records retention officer or simply lost the records is still an unresolved issue.  Because §1-210(a), G.S., of the FOI Act requires that public agencies maintain all public records in an accessible place, the respondents are strongly encouraged to resolve this issue forthwith.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 9, 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:
Steven Edelman
202 Scotland Road
Windham Center, CT  06802
Neal Beets, Town Manager,
Town of Windham; Town Clerk,
Town of Windham; and Town of
Windham
c/o Richard S. Cody, Esq.
34 Church Street
Mystic, CT  06355
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-414/FD/cac/5/9/2012