The above captioned matter was heard as a contested case on June 14, 2012, at which time the complainant 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 letter dated December 29, 2011, the complainant made a request to the respondents for “a copy of a report with notes submitted by Mr. John Hayes earlier this month with respect to title issues pertaining to [complainant’s] property at 6 Packer Brook Road” (the “requested records”).

     3.  It is found that by letter dated January 10, 2012, Jo-an Brooks, Land Use Coordinator for the respondent Commission, in effect, denied the complainant’s request, stating that: a) there was no report by Mr. Hayes; b) she had returned his undated handwritten notes regarding 6 Packer Brook Road to Mr. Hayes “because they did not supply the chronological outline…that I thought might be helpful”; and c) there was an exception to mandatory disclosure for preliminary notes.

     4.  It is found that, by letter dated January 24, 2012 and filed with the Commission on January 25, 2012, the complainant appealed to the Commission, alleging that the failure of the respondents to provide the requested records violated the Freedom of Information Act (“FOIA”).

     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. (emphasis added)

     6.  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. 

     7.  It is found that this case originated out of a protracted real estate and property tax dispute between the complainant and the Town of Redding. However, most of the long factual history of this dispute is not relevant to this case, which addresses only the records submitted by Mr. Hayes to the respondents in December 2011.

     8.  It is found that on October 19, 2011 a meeting was held at the respondent Commission’s offices between the complainant, Jo-an Brooks, and John Hayes, a land use and planning consultant for the respondents. Mr. Hayes took detailed notes of the discussion at the meeting.

     9.  It is found that, following the meeting, Ms. Brooks asked Mr. Hayes to prepare a summary concerning the issue of whether the 8.4 acre lot at 6 Packer Brook Road included a separate two acre building lot or not. Mr. Hayes submitted handwritten records to Ms. Brooks, but she returned these records to Mr. Hayes. At the hearing, Ms. Brooks testified that the records Mr. Hayes submitted were not what she asked for and that she returned them to him shortly after receiving them because they seemed “useless”. The complainant testified that Mr. Hayes told her during a telephone conversation on December 28, 2011 that the requested records had been returned to him.

     10.  It is found that at the time of the hearing Mr. Hayes was undergoing intensive radiation therapy on a daily basis at the Smilow Cancer Center of Yale/New Haven Hospital. In lieu of providing sworn testimony, counsel for the respondents submitted an affidavit from Mr. Hayes which includes the statement that the requested records “have been discarded”. It is, therefore, found that the requested records do not exist. 

     11.  It is concluded that the requested records, if they existed, would be “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S. The records related to the public’s business and were received and used by a public agency. Moreover, the definition of “public records” at §1-200(5), G.S., includes records that are “handwritten”.

     12.  It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide copies of records which their consultant, Mr. Hayes, had destroyed.
         
     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 October 10, 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:

Lisa Lind-Larsen
6 Packer Brook Road
P.O. Box 3
Redding Ridge, CT  06876

Planning Commission, Town of Redding;
and Town of Redding
c/o Matthew L. Stone, Esq.
Pullman & Comley
90 State House Square
Hartford, CT  06103

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-042/FD/cac/10/10/2012