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Final Decision FIC2011-503
In the Matter of a Complaint by
FINAL DECISION
Suzanne Carlson and the
Manchester Journal Inquirer,
     Complainants
     against
Docket #FIC 2011-503
Town Administrator, Town of
Vernon; and Town of Vernon,
     Respondents
May 23, 2012

     The above-captioned matter was heard as a contested case on February 2, 2012, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with, and the Commission takes administrative notice of, the evidence presented in Docket #FIC 2011-535, Suzanne Carlson and the Manchester Journal Inquirer v. Town Administrator, Town of Vernon; and Town of Vernon; and Docket #FIC 2011-542, Suzanne Carlson and the Journal Inquirer v. Mayor, Town of Vernon; and Town of Vernon

     1.  The respondents are public agencies within the meaning of §1-200(1), G.S.
     2.  It is found that, on September 19, 2011, the complainant made a verbal request to the respondents to inspect the application and resume of Andrew Marchese, the town zoning enforcement officer.
     3.  It is found that, without reviewing the records, described in paragraph 2, above, the respondents denied the request to inspect, stating to the complainant that they must first notify Mr. Marchese of the request, in order to give him the opportunity to object to the disclosure of the records.
     4.  By letter of complaint, dated and filed September 19, 2011, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the request for records described in paragraph 2, above. 
     5.  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.
     6.  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.
     7.  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.”
     8.  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.
     9.  Section 1-214(b), G.S., provides, in relevant part:
          [w]henever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned and (2) the collective bargaining representative, if any, of each employee concerned.  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy (emphasis added).
     10. It is found that the respondents provided notice to Mr. Marchese of the request, described in paragraph 2, above.  It is further found that Mr. Marchese did not object to the disclosure of such records.
     11.  It is found that the respondents provided a copy of the requested records, described in paragraph 2, above, to the complainant, on December 23, 2011, with Mr. Marchese’s social security and driver’s license numbers redacted.
     12.  At the hearing in this matter, the respondents conceded, and it is found, that the denial of the request, described in paragraph 2, above, constituted a violation of §1-214, G.S., in that they failed to conduct a review of the requested records to determine whether they had a reasonable belief that disclosure of such records would constitute an invasion of personal privacy, prior to notifying Mr. Marchese of the request.

     13.  At the hearing in this matter, the complainant also argued that the respondents failed to provide the requested records to her promptly.  According to the complainant, the respondents should have provided her with the opportunity to inspect the requested records immediately, upon demand. 
     14.  With respect to the general question of promptness, the meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission. In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. The Commission also gave the following guidance:
          The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority. Thus, it should take precedence over routine work that has no immediate or pressing deadline.
     15.  It is found that the respondents’ violation of §1-214, G.S., unnecessarily delayed the complainant’s access to the records.  Although it is found that the respondents are not necessarily required under the Act to respond immediately to the complainant’s verbal requests for records upon demand, it is also found that a three month delay in providing access to the requested records, under the facts and circumstances of this case, is not prompt.
     16.  Based upon the foregoing, it is concluded that the respondents violated §§1-214, 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 §§1-214, 1-210(a) and 1-212(a), G.S.
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:
Suzanne Carlson
306 Progress Drive
P.O. Box 510
Manchester, CT  06045
Manchester Journal Inquirer
306 Progress Drive
P.O. Box 510
Manchester, CT  06045
Town Administrator, Town of Vernon;
and Town of Vernon
c/o Martin B. Burke, Esq.
130 Union Street
P.O. Box 388
Rockville, CT  06066

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-503/FD/cac/5/23/2012