The above-captioned matter was heard as a contested case on May 15, 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), G.S.

     2.  It is found that, on October 18, 2011, the complainant made a written request to the respondents for a copy of “any correspondence (email, letters, etc.) between the First Selectman Brian Sear, Selectman Lee Wrigley & Town Lawyer with the Siting Council, Friends of the Quinebaug, Robert Noiseax, Steve Orlomoski and PRE between July 1, 2011 to present.”

     3.  It is found that, by letter dated October 20, 2011, the respondents provided copies of “the documents applicable to [the complainant’s] recent FOI request.”

     4.  By letter of complaint, dated and filed October 26, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to fully comply with the request for records described in paragraph 2, above.  The complainant requested the imposition of a civil penalty in this matter.

     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), G.S.

     9.  At the hearing in this matter, the complainant stated that she obtained, from other sources, copies of documents, including emails, dated September 12, 13, and 15, 2011, and a petition, that fell within the scope of her request, but were not provided to her by the respondents. 

     10.  The respondent first selectman testified that he provided to the complainant copies of all records he believed were responsive to the request, but did not provide the emails, or disclose their existence, because he believed such emails were “confidential” at the time of the request.  He further testified that he did not provide the petition, because he believed it did not fall within the scope of the request, described in paragraph 2, above.

     11.  It is found that the respondents did not offer any evidence, at the hearing in this matter, to support their assertion that the emails, described in paragraph 9, above, were confidential at the time of the request, described in paragraph 2, above.  At the hearing in this matter, the respondent first selectman ultimately agreed to provide the complainant with copies of the emails.

     12.  It is found that the emails, described in paragraph 9, above, fall within the scope of the request, described in paragraph 2, above. 

     13.  It is concluded that the respondents violated the §§1-210(a) and 1-212(a), G.S., by failing to provide the emails, described in paragraph 9, above, to the complainant.

     14.  With regard to the petition, described in paragraph 9, above, it is found that the  respondent first selectmen reasonably believed that the petition did not fall within the scope of the request, described in paragraph 2, above.

     15.  Accordingly, it is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the petition, described in paragraph 9, above, to the complainant.

     16.  Upon consideration of the record in this matter, the Commission declines to impose a civil penalty. 

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

     1.  Forthwith, the respondents shall provide copies of the emails described in paragraph 9, above, at no charge, if they have not already done so. 

     2.  The Commission advises the respondents that it is fundamental that a public agency has a duty to disclose that it maintains records responsive to a request, even if the agency believes such records are exempt from disclosure.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 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:

Karen Sulich
c/o Lloyd L. Anderson, Esq.
P.O. Box 10
Canterbury, CT  06331

Brian Sear, First Selectman,
Town of Canterbury; and
Town of Canterbury
1 Municipal Drive
Canterbury, CT   06331

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2011-599/FD/cac/7/11/2012