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Final Decision FIC2015-326
In the Matter of a Complaint by
David Morton,
Docket #FIC 2015-326
First Selectman, Town of Westport; and
Town of Westport,
January 13, 2016

     The above-captioned matter was consolidated for hearing with Docket #FIC 2015-325, also captioned David Morton v. First Selectman, Town of Westport; and Town of Westport.  Both matters were heard as contested cases on September 21, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.1

The Commission notes that the complainant provided authorization for Gregory Slate to represent his interests at the hearing in this matter. David Morton was not present at the hearing.
     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 April 6, 2015, the complainant made a written request to the respondents for certain records related to a piece of real estate owned by the town of Westport referred to as the Inn at Longshore (hereinafter referred to as “Longshore”).  Specifically, the complainant requested the following records:
a. Any and all emails sent or received by to and or from since January 1, 2014;
b. Any and all emails sent or received by containing any of the words “baron,” “barons,” “baron's,” or “south” since January 1, 2014; and
c. Any and all emails sent or received by containing any of the words “baron,” “barons,” “baron's,” “avi,” “wakeman,” or “south” since January 1, 2014.
     3.  It is found that, by letter dated April 6, 2015, the respondents acknowledged the complainant’s record requests, described in paragraph 2, above, and informed him that they needed additional time to search for and review any responsive records, which would then be forthcoming.
     4.  It is found that on April 10, 2015, the complainant narrowed the scope of his request with respect to those records described in paragraph 2, above, by changing the time period from January 1, 2014 to January 1, 2015, which was acknowledged by the respondents by letter dated April 13, 2015.
     5.  It is found that by letter dated May 4, 2015, the respondents notified the complainant that records responsive to his request detailed in paragraph 2, above, were available.
     6.  By email dated May 7, 2015 and filed on May 8, 2015, the complainant appealed to this Commission, alleging that the respondents failed to provide copies of certain records referenced in paragraph 2, above, in violation of the FOI Act.
     7.  Section 1-200(5), G.S., defines “public records or files” as:
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.
     8.  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.
     9.  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.”

     10.  It is found that, to the extent that the records identified in paragraph 2, above, exist and are maintained by the respondents, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
     11.  At the hearing in this matter, the complainant conceded that he had received responsive records from the respondents, but contended that the respondents did not fully comply with any of the requests described in paragraph 2, above.
     12.  The respondents did not claim any exemption to disclosure.  Rather, the respondents asserted at the hearing that they conducted a diligent search and provided all responsive records that they maintain to the complainant. 
     13.  It is found that the respondents communicated frequently with the complainant in an effort to fully understand the scope of his request and that responsive records were made available on several occasions, including on May 14, 2015.2

The Commission notes that the parties exchanged several other communications between May 8, 2015 and May 12, 2015 that showed a willingness by the respondents to comply with the complainant's request. Those same communications also contained various assertions made by the complainant of noncompliance with the Freedom of Information Act regarding alleged redactions of certain electronic communications. However, those particular assertions were not raised at the hearing, and are therefore deemed abandoned and shall not be considered herein.
     14.  The respondents provided ample testimony regarding the scope of their search for responsive records, which included coordinated efforts with several departments in the town of Westport, including the Parks and Recreation department, Board of Education, the Finance department and the IT department, and it is found that the respondents provided the complainant with all responsive records as described in paragraph 2, above, which they maintain.
     15.  During the hearing, certain allegations were made regarding the respondents’ actions in conjunction with a previous FOI complaint filed by the complainant in the present matter against the respondents (Docket #FIC 2015-023).  However, such allegations were not fairly raised in the complaint.  Accordingly, the Commission declines to make any findings related to that alleged conduct as it is immaterial to the issues brought forward in the complaint presently before the Commission.3

The Commission takes administrative notice of that previous complaint (Docket #FIC 2015-023), only to note its lack of relevancy to the complaint presently before the Commission.
     16.  Consequently, it is concluded that the respondents did not violate §§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.  The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 2016.

Cynthia A. Cannata
Acting Clerk of the Commission

Dave Morton
190 Main Street
Westport, CT  06880
Gregory Slate
2300 8th Street, NW
Suite 21020
Washington, DC
First Selectman, Town of Westport; and Town of Westport
c/o Gail Kelly, Esq.
Peter V. Gelderman, Esq.
Berchem, Moses & Devlin, P.C.
1221 Post Road East
Westport, CT  06880

Cynthia A. Cannata
Acting Clerk of the Commission