Final Decision FIC2013-019
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In the Matter of a Complaint by |
FINAL DECISION | |
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Bruce Douglas and the Capitol Region
Education Council, Complainants |
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against
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Docket #FIC 2013-019 | |
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Gena Glickman, President, Manchester
Community College; and Manchester Community College, Respondents |
August 28, 2013 |
The above captioned matter was heard as a contested case on July 15, 2013, at which time 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 letter dated November 5, 2012, the complainants made a request to the respondents to inspect “all records pertaining to all requests for proposals (RFPs) that the college has initiated in the past four years… includ[ing]… all timelines or outlines of the RFP process, Governing Board minutes, email correspondence, responses to the request, and documents related to action taken by the school” (the “requested records”). The letter also stated:
While we expect a comprehensive response, please provide such information promptly as it becomes available. We wish to inspect these records as they are available without waiting for your response to the comprehensive request.
3. It is found that by letter dated December 6, 2012, respondent Gena Glickman acknowledged the request, stating that the respondents “will respond with all responsive documents” and “will act as quickly as possible.” Ms. Glickman also stated that the request was “extensive” and would require “many departments to examine responsive documents”, but that the respondents “will let you know as soon as this review has been completed.”
4. It is found that by email dated December 13, 2012, Attorney Ernestine Weaver, acting on behalf of the respondents, wrote complainant Douglas:
In response to your FOI request to Manchester Community College, I’ve attached a spreadsheet of RFPs covering 2009 through 2012. If you are looking for specific information regarding one of the RFPs listed, please let me know. If you are looking for information relating to an RFP that went through DAS, you should contact them for specific information.
By an additional email to complainant Douglas the next day, Attorney Weaver corrected herself stating the spreadsheet covered the period 2008 through 2012, not 2009 through 2012.
5. It is found that, by letter dated and filed with the Commission on January 11, 2013, the complainants appealed to the Commission, alleging that the failure of the respondents to provide the requested records violated the Freedom of Information Act (“FOIA”). The complaint alleged that the violation was “intentional” and requested that respondent Glickman “be fined and ordered to comply with my original FOIA request.”
6. 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.
7. Section 1-210(a), G.S., states 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, (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.
8. It is concluded that the requested records are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.
9. The Commission takes administrative notice of the decision and all evidence in Docket #FIC 2012-008; Denise Gallucci v. Chairman, Governing Board, Great Path Academy at Manchester Community College; and Great Path Academy at Manchester Community College. Denise Gallucci was at all relevant times the Deputy Executive Director of the Council which is a complainant herein; Ms. Glickman was the chairman of the Governing Board of Great Path Academy. It is found that the present case is a continuation of a dispute between the complainant Council and the respondent Community College. The dispute originated in a contest concerning the operation and management of Great Path Academy, a magnet school located on the campus of the respondent College. An RFP process was utilized to identify a manager of Great Path Academy to replace the complainant Council, which had managed the school from 2004 to 2012.
10. It is found that all the requested records were made available to the complainants for inspection on February 20, 2013. The records consisted of nineteen binders with records detailing all aspects of eighteen different RFPs. The Director of Finance at the respondent College, Regina Ferrante, supervised the search for records and the compilation of the binders, working with attorney Ernestine Weaver from the staff of the Board of Regents.
11. Prior to the hearing, counsel for the respondents filed a brief admitting that the respondents failed to provide the records promptly, but urging the FOIC to reject the complainants’ request for civil penalties against respondent Glickman.
12. It is found that Attorney Weaver’s December 13, 2012 email was an effort to narrow the complainants’ request. The email did not state that more documents were forthcoming, or in the alternative, that the spreadsheet was the full extent of records production that the respondents intended. The email did invite a response if the complainants wanted “specific information regarding one of the RFPs listed”, but the complainants did not respond in any way to the respondents until respondent Glickman was copied on the January 11, 2013 letter of complaint to the Commission. (At the hearing, the complainants argued that they considered Attorney Weaver’s email to be the answer to their request and a continuation of stalling tactics.)
13. It is concluded that the respondents violated §1-210(a), G.S., by failing to make the requested records available for inspection promptly and in installments as specifically requested by the complainants.
14. With respect to the complainants’ requests for the imposition of a civil penalty, §1-206(b)(2), G.S., provides, in relevant part:
…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds… the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
15. In Docket #FIC 2012-008, the complainant also asked for the imposition of civil penalties on respondent Glickman, but that request as well as a request for a “null and void order” were both denied. Respondent Glickman was ordered to have an FOIA training session, which did take place in the fall of 2012.
16. It is found, given the volume of records requested in this case, the other responsibilities of the Finance Department at the respondent College, the loss of a procurement person in the Finance Department, and the lack of a direct response to attorney Weaver’s December 13, 2012 email, that the denial of the FOIA right herein was not without reasonable grounds and there is no legal basis for the assessment of a civil penalty.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, respondent Glickman shall actively supervise her staff to ensure that the respondents comply with FOIA requests promptly.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 2013.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission
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:
Bruce Douglas and the Capitol Region
Education Council
c/o Anthony R. Shannon, Esq.
Shipman & Goodwin, LLP
One Constitution Plaza
Hartford, CT 06103-1919
Education Council
c/o Anthony R. Shannon, Esq.
Shipman & Goodwin, LLP
One Constitution Plaza
Hartford, CT 06103-1919
Gena Glickman, President, Manchester
Community College; and Manchester
Community College
c/o Emily V. Melendez, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
Community College; and Manchester
Community College
c/o Emily V. Melendez, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2013-019/FD/cac/8/28//2013