The above-captioned matter was heard as a contested case on September 20, 2011, at which time the complainants and the respondents appeared, and presented testimony, exhibits and argument on the complaint. The caption has been amended to reflect the respondent Department’s new name, pursuant to reorganization legislation.

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.  By letter of complaint, dated and filed May 10, 2011, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by denying the complainants prompt access to the records they requested in writing on May 2, 2011. The complainants requested that the maximum civil penalty be imposed against the respondents.

3.  It is found that on May 2, 2011 the complainants delivered a letter to the respondent Department requesting access to all records created by the Commissioner, the Colonel, the Lt. Colonel and the Department’s Legislative Liaison since September 30, 2010 regarding “firearms, permits, appeals, staff assignments” or suggestions to the Governor concerning appointments to the Board of Firearms Permit Examiners (“the requested records”).

4.  It is found that on May 4, 2011 the complainants telephoned Dawn Hellier, an attorney at the respondent Department, and inquired about the status of their request. Subsequently, on May 4, 2011, respondent Mancini, by email, advised the complainants that the search for responsive records had begun and attached a copy of the respondents’ acknowledgement letter. The acknowledgement letter, dated May 4, 2011, was also mailed to the complainants. 

5.  It is found that the complainants’ request required a search of the paper files and computers of five individuals: the Commissioner, the Colonel, two persons serving as Lt. Colonel and the Department’s Legislative Liaison. The Department’s Legislative Liaison was particularly busy with the General Assembly being in session during May 2011. The respondent Department has a Special Licensing and Firearms unit, within the Division of State Police, and appeals from its decisions are reviewed by the Board of Firearms Permit Examiners. The records ultimately disclosed, in response to the complainants’ request, constituted 300 to 400 pages.

6.  It is further found that in 2010 and in 2011 to date, the Division of State Police has been receiving requests for records at an annual rate of 1,000 to 1,100 requests each year. At the time of his May 2, 2011 request, complainant Peruta had two other pending requests, one of which involved 10,000 to 15,000 pages.

7.  It is found that the records request herein implicated the prohibition against disclosure of the name and address of persons issued a pistol permit, §29-28(d), G.S., as well as the disclosure of erased records, §54-142a, G.S. At the time of the records request, the Board of Firearms Permit Examiners was a party to pending litigation. Therefore, the records request also implicated the exemptions from mandatory disclosure for records privileged by the attorney-client relationship, §1-210(b)(10), G.S., and for records pertaining to strategy and negotiation with respect to pending litigation, §1-210(b)(4), G.S. Indeed, some records were withheld from the complainants based upon claims of these prohibitions and exemptions.

8.  It is found that, on May 13, 2011, the complainant, by email, requested that his request be treated as “time sensitive” due to the legislative session then in progress, and that he first be provided with emails from the relevant individuals. Also on May 13, 2011, respondent Mancini, by reply email, informed the complainants that twenty to thirty pages of “responsive records” were available for “immediate review”. Respondent Mancini’s email also included a discussion of information responsive to another request that had been available for some days awaiting complainant Peruta’s inspection.

9.  It is found that complainant Peruta did not inspect the initial records made available on May 13, 2011. However, on May 31, 2011 the respondents made available, and complainant Peruta inspected, all requested records which the respondents considered to be subject to mandatory disclosure.

10.  At the hearing, the complainants stated that they wished to narrow their complaint to the promptness of the disclosure. They argued that they should have had a “response” on the same business day as their request and complained that the respondents did not present anyone with whom complainant Peruta could discuss their request. The respondents argued that the complainant sought to engage a negotiator from the respondent Department and that there was no legal obligation to negotiate the terms of their FOIA compliance. Indeed, respondent Mancini testified that he was not willing to sit with complainant Peruta.

11.  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.

12.  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.…

13.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.

14.  The Commission takes administrative notice of its recent, August 10, 2011 decision in Docket #FIC 2010-643, Edward Peruta v. Seth Mancini, State of Connecticut, Department of Public Safety; Thomas Hatfield, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety. In Docket #FIC 2010-643, complainant Peruta presented similar arguments on behalf of his claim of a promptness violation, citing the respondents’ alleged failure “to have trained personnel at Troop L to accept and respond to his request”. The complaint was dismissed. The Commission concluded that “under the facts and circumstances of this case, where the records at issue were compiled, reviewed and made available to the complainant in just over two weeks, such provision of access was ‘prompt’, within the meaning of §1-210(a), G.S.” Indeed, in the present case, the complainant testified that he filed his complaint herein five days after he walked out of the hearing in Docket #FIC 2010-643.
 
15.  It is concluded that the facts and circumstances of this case include the compilation of a substantial body of records from multiple sources and legal review of this substantial body of records with reference to various exemptions. Given the totality of the circumstances, the provision of  a few initial records in eleven days and the balance in twenty nine days constituted “promptly”, within the meaning of §1-210(a), G.S.

16.  It is concluded that the respondents did not violate the promptness provisions of §1-210(a), G.S.

17.  It is also concluded that the promptness requirement of §1-210(a), G.S., does not include any right to discuss or negotiate with representatives of public agencies concerning compliance with records requests which are already pending. Of course, such discussions are often beneficial for the records requestor and the relevant public agency. But a public agency also has the right to decide that it does not choose to have its representative discuss or negotiate a pending request with a given requestor. This conclusion is distinguished from, and does not implicate, the right pursuant to §1-210(a), G.S., to make an initial request orally to inspect public records.     

18.  Accordingly, the complainant’s request for the imposition of civil penalties against the respondents is denied.

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 February 22, 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 Road
Rocky Hill, CT  06067

Sergeant Seth Mancini, Esq., State of Connecticut, Department of
Emergency Services and Public Protection, Division of State Police; and
State of Connecticut, Department of Emergency Services and Public Protection,
Division of State Police
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission