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Final Decision FIC2011-450
In the Matter of a Complaint by
FINAL DECISION
Edward Peruta and the American News
and Information Services, Inc.
     Complainant
     against
Docket #FIC 2011-450
Rueben Bradford, Commissioner, State of
Connecticut, Department of Emergency
Services and Public Protection, Division of
Public Safety; Kenneth Zercie, Richard
Alexandre, and  William Podgorski, State
of Connecticut, Department of Emergency
Services and Public Protection, Division of
Scientific Services; and Dawn Hellier,
Seth Mancini and Thomas Hatfield, State
of Connecticut, Department of Emergency
Services and Public Protection, Division of
Public Safety, Legal Affairs Unit,
     Respondents
June 27, 2012

     The above-captioned matter was heard as a contested case on May 11, 2012, at which time the complainants and the 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 on August 29, 2011, the complainants sent an e-mail to the respondents Mancini, Hellier, and Hatfield, in which they requested:

          [a.] Access to any and all Freedom of Information requests made since January 1, 2011 by others regarding the Connecticut State Police Crime Laboratory.

          [b.] Access to any Freedom of Information Requests or department responses regarding the crime lab since July 21, 2011.

          [c.] Access to any and all employee time records for Crime Lab personnel which document periods where employees have unscheduled taken time off from their regular work schedule. This request includes any time off taken for other than regularly scheduled days off, and sick days, such as but not limited to Comp. time.

          [d.] Access to any and all records of, or approvals for, Crime Lab personnel working outside of their normal assigned duties with the state of Connecticut.

          [e.] Any records, (redacted where necessary), of investigations into misconduct by members of the Crime Lab.

          [f.] Access to any and all correspondence, (sent or received), between any member of the department and the office of Governor Dannel P. Malloy, Mr. Michael Lawlor, or their staff regarding the newly created 17 member panel appointed by Gov. Malloy to investigate or review the Connecticut State Police Crime lab issues. This request includes any guidelines or meeting schedules for the panel.

          [g.] Access to any and all records which address or reference the need or possible need to re-test DNA samples during any period since January 1, 2011.

          [h.] Access to any and all records which address any inability to submit DNA results to the national CODIS database.

          [i.] Access to any information regarding  NON CRIMINAL investigations of persons assigned to the Connecticut State Police Crime Lab.

          [j.] Access to any and all correspondence sent to or received from Major William R. Podgorski Supervisor of the Connecticut State Police Crime Laboratory or Kenneth Zercie, Director Division of Scientific Services regarding DNA since January 1, 2011.
     (Emphasis in original.)
     3. It is found that the complainants also requested a meeting with the respondents “to properly identify specific records.”
     4. It is found that on August 30, 2011, without informing the respondents in advance, the complainant Peruta appeared at the respondents’ offices in order to discuss his request and to inspect the records he requested the previous day, although the respondents had not yet replied to his e-mail. 
     5. It is found that on that day, August 30, 2011, when Peruta went to the respondents’ offices in order to meet and discuss his FOI requests, all sworn personnel of the respondent Department of Emergency Services and Public Protection had been mobilized to provide assistance with clean-up and maintaining order in the aftermath of Hurricane Irene.
     6. It is found that no one in the Legal Affairs Unit was available to meet with the complainant Peruta and he was unable to inspect the records he requested, described in paragraph 2, above, on August 30, 2011.  It is found that a secretary for the respondents suggested that Peruta return the next day to speak with the respondent Mancini.
     7. By e-mail correspondence filed August 30, 2011, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide prompt access to the records they requested on August 29, 2011.  The complainants requested the imposition of a civil penalty.
     8. In their appeal, the complainants stated that “[t]he sole issue of this complaint is the repeated failure to provide anyone to accept and/or respond to verbal and written requests for PROMPT ACCESS to public records... The failure to have personnel available to accept, discuss or respond to FOI requests is an immediate denial of the right to PROMPT ACCESS TO PUBLIC RECORDS.” (Emphasis in original.)
     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, …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:
          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…
     11. Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     12. It is concluded that the records requested by the complainants are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     13. It is found that on August 31, 2011, at 5:42 p.m., the respondent Mancini replied via e-mail to the complainant’s August 29, 2011 e-mail request. It is found that Mancini acknowledged the complainants’ request, denied their request for a meeting, and informed them that he could make records available to the complainants on a “piecemeal basis” as they are located and reviewed for disclosure.  It is found that Mancini also invited Peruta to continue to communicate by e-mail and telephone.
     14. It is found that, contrary to the complainants’ assertion, Mancini’s e-mail to Peruta on August 31, 2011 demonstrated that the respondents accepted and responded to the complainants’ request for prompt access to records.  
     15. Moreover, it is found that on September 7, 2011, the respondents provided the first installment of the records requested by the complainants, with additional records available for the complainants’ inspection shortly thereafter. 
     16. It is found that, despite their demand for almost immediate access, the complainants have not yet inspected any of the records.
     17. It is found that the respondents acknowledged the complainants’ request in a timely manner, promptly provided the records for inspection, and never denied the complainants’ request. 
     18. It is found that the respondents did not violate the FOI Act as alleged by the complainants.
     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 June 27, 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:
Edward Peruta and the American News
and Information Services, Inc.
38 Parish Hill Road
Rocky Hill, CT  06067
Rueben Bradford, Commissioner, State of
Connecticut, Department of Emergency Services
and Public Protection, Division of Public Safety;
Kenneth Zercie, Richard Alexandre, and  William
Podgorski, State of Connecticut, Department of
Emergency Services and Public Protection, Division
of Scientific Services; and Dawn Hellier, Seth
Mancini and Thomas Hatfield, State of Connecticut,
Department of Emergency Services and Public
Protection, Division of Public Safety, Legal Affairs Unit
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
State of Connecticut
Office of the Attorney General
110 Sherman Street
Hartford, CT 06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-450/FD/cac/6/27/2012