The above-captioned matter was heard as a contested case on September 7 and October 11, 2011, at which times the complainants and the respondents appeared 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)(A), G.S.

2. It is found that, by email dated December 9, 2010 to the respondent First Selectman, the complainants requested copies of all records “regarding the deer slaughter that took place in Dunlap Woods and Selleck’s Woods during November and December 2010 including number of deer killed” (the “requested records”, also sometimes referred to as the “records request”). By email dated March 17, 2011 again to the respondent First Selectman, the complainants renewed their records request.

3. It is found that by email dated March 22, 2011 to the complainants, the executive assistant to the respondent First Selectman responded that she had “looked through our files and did not see any of the information you are requesting so I checked with the Administrative Officer.” The executive assistant suggested that the complainants “reach out to” the respondent Chairman, Deer Management Committee. The Administrative Officer had told the executive assistant that the deer management program was administered by the Park and Recreation Commission. By email dated March 23, 2011 to the complainants, the executive assistant to the respondent First Selectman also suggested that the complainants “check with the Director of the Park & Recreation Department, Sue Swiatek….” On March 29, 2011, the executive assistant received from the respondent Chairman, Deer Management Committee an email report which stated that six deer had been killed during the relevant Sellecks-Dunlap cull, and she immediately forwarded it by email to the complainants. The complainants responded by email also on March 29, 2011, emphasizing that their records request included relevant emails.

4. It is found that, by email dated March 24, 2011, the complainants asked the respondent Chairman, Deer Management Committee, to furnish the requested records, and also requested the schedule of meetings of the respondent Deer Management Committee, along with its minutes and agendas (the respondent Chairman, Deer Management Committee and the respondent Deer Management Committee together being the “Deer Management Committee respondents”).

5. On April 1, 2011, by email to the complainants, the respondent Chairman, Deer Management Committee stated that: “[n]o Committee meetings are scheduled at this time.”  On April 3, 2011, the respondent Chairman, Deer Management Committee, provided the complainants with more than eighty emails within the scope of the records request.  

6. By letter dated April 1, 2011 and filed with the Freedom of Information Commission (the “Commission”) on April 5, 2011, the complainants appealed to the Commission, alleging that, in violation of the Freedom of Information Act (“FOIA”): 1) the Deer Management Committee respondents failed to provide “access to a meeting schedule, agendas and minutes of meetings”; and that 2) the respondent First Selectman failed to provide the requested records. The complainants requested the imposition of civil penalties.

7. Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

     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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

     …

     Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. 

8. It is concluded that the requested records are “public records” within the meaning of §§1-210(a) and 1-212(a), G.S.

9. It is found that the respondent Deer Management Committee is a twelve member municipal advisory commission that did not hold any noticed meetings from 2005 until October 2011. During all times relevant hereto, the respondent Chairman, Deer Management Committee, was vigorously active as a part-time, unpaid public official, informing the respondent First Selectman of events concerning deer management on a regular basis.

10. It is found that the town Park and Recreation Commission had exclusive management and control of all town parks, and that it passed resolutions authorizing culls or bow hunting of deer in the town parks during certain time periods. It is also found that the respondent First Selectman had only advisory authority concerning culls or bow hunting of deer in the town parks.

11. It is further found that from Thanksgiving 2010 through spring 2011 an organization named People for the Ethical Treatment of Animals (“PETA”) was responsible for sending approximately forty to eighty emails per day from persons around the world to the various Darien selectmen, urging a halt to culls or bow hunting of deer in the town parks. During November and December 2010, the respondent First Selectman was unable to use his Blackberry mobile device. Selectperson Jayme Stevenson elected to simply turn her Blackberry off.

12. Based upon a review of the emails provided by the respondent Chairman, Deer Management Committee, the complainants identified seventeen emails sent from the respondent Chairman, Deer Management Committee, to the respondent First Selectman that were within the scope of the records request (eleven emails directly to the respondent First Selectman and six more on which the respondent First Selectman was copied). It is found that the respondent First Selectman maintained these records at the time of the complainants’ March 17, 2011 records request. It is also found that the respondent First Selectman sent a single email within the scope of the records request. It was an “FYI” email to his fellow selectmen dated January 23, 2011, forwarding a report for newspaper publication by the respondent Chairman, Deer Management Committee, stating that all meat from the six killed deer went to a homeless shelter near Bridgeport.

13. It is found that the complainants’ records requests were the first FOIA requests that the respondent First Selectman and his executive assistant had received and that they received these requests during the respondent First Selectman’s first term in office. The executive assistant testified at the October 11, 2011 hearing that improved FOIA procedures have been implemented in the office of the respondent First Selectman.   

14. As discussed in paragraph 3, above, it is found that the respondent First Selectman did not ignore the complainants’ March 17, 2011 records request, but rather, through a series of emails and telephone conversations, directed the complainants to the Deer Management Committee and the Park and Recreation Commission.  Just as the respondent Deer Management Committee provided the emails discussed at paragraph 5, above, the Park and Recreation Commission provided the complainants with a substantial body of records concerning deer management. Indeed, with the single exception of one email dated January 23, 2011, discussed at paragraph 12, above, the complainants received all the requested records by April 3, 2011. 

15. It is concluded that the Deer Management Committee respondents did not violate the records or meetings requirements of the FOIA. The part-time, unpaid respondent Chairman, Deer Management Committee, provided copies of eighty requested records within eight days of the request. Because the respondent Deer Management Committee did not hold any noticed meetings for approximately six years, it had no agendas, minutes or schedules to provide at the time of the request.

16. It is concluded that the respondent First Selectman violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainants with the eighteen emails (seventeen plus one) that he maintained, as discussed in paragraph 12, above. The Appellate Court decision in Lash v. FOIC, 116 Conn. App. 171 (2009), held that the First Selectman had no duty to provide records of another town agency, such as the law department. Here, the relevant eighteen emails were maintained in the office of the First Selectman, not exclusively in another town agency. It is long established that, if a public agency has requested records, it may not require the requestor to seek the records from another public agency that also has the same records. Shultz v. FOIC, 2001 Conn. Super. LEXIS 964, CV000503195S, Superior Court, J.D. of New Britain (April 3, 2001). See also Kupchunos v. FOIC, 2000 Conn. Super. LEXIS 518, CV990496002S, Superior Court, J.D. of Hartford-New Britain (February 15, 2000).

17. The question of a civil penalty was not pressed at the hearings. Based upon the totality of the circumstances, the Commission declines to consider the imposition of any civil penalty. The Commission believes that the respondent First Selectman now appreciates that, even though he did not have any legal responsibility for the deer management program, he did have an FOIA responsibility to provide access to any non-exempt records that he maintained within the scope of the records request.

The following orders by the Commission are hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  The complaint is dismissed as to the Deer Management Committee respondents.

2.  Henceforth, the respondent First Selectman shall comply with all the requirements of §§1-210(a) and 1-212(a), G.S., including the requirement to perform a diligent search of all electronic records maintained in his office.     

Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 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:

Nancy Rice and Friends of Animals
777 Post Road
Suite 205
Darien, CT  06820

Kent Haydock, Chairman, Deer Management Committee, Town of Darien;
Deer Management Committee, Town of Darien;
2 Renshaw Road
Darien, CT  06820

and

David Campbell, First Selectman, Town of Darien
c/o John Wayne Fox, Esq.
Curtis, Brinckerhoff & Barrett, P.C.
666 Summer Street
Stamford, CT  06901

___________________________
Cynthia A. Cannata
Acting Clerk of the Commission