FOI: FIC2015-325

Final Decision FIC2015-325
 
In the Matter of a Complaint by
FINAL DECISION
 
David Morton,
     Complainant
 
     against
 
Docket #FIC 2015-325
First Selectman, Town of Westport; and
Town of Westport,
     Respondents
 
 
January 13, 2016
 

     The above-captioned matter was consolidated for hearing with Docket #FIC 2015-326, also captioned David Morton v. First Selectman, Town of Westport; and Town of Westport.  Both matters were heard as contested cases on September 21, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.1

1
The Commission notes that the complainant provided authorization for Gregory Slate to represent his interests at the hearing in this matter. David Morton was not present at the hearing.

 
      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 April 4, 2015, the complainant made a written request to the respondents for certain records related to a piece of real estate owned by the town of Westport referred to as the Inn at Longshore (hereinafter referred to as “Longshore”).  Specifically, the complainant requested the following records:
a. A copy of the valuation funded by the appropriation of $19,000 to Town Attorney’s Fees and Services Account (hereinafter “Longshore Valuation”) Account. #1-101-01-10-170-100-310-0001 to conduct a valuation of Longshore and consult regarding the formulation of an RFP (hereinafter “Longshore RFP”) approved at the February 1, 2006 Board of Finance meeting (hereinafter “Feb. BOF Meeting”);
 
b. A copy of any all records used to create the Longshore Valuation, including but not limited to financial statements, audited account statements, receipts, appraisals, and or correspondence;
 
c. A copy of the Longshore RFP funding for which was approved at the Feb. BOF Meeting;
 
d. A copy of any and all records related to the Longshore RFP, including but not limited to proposals, blueprints, letters, and or emails;
 
e. Any and all emails sent or received by any email address
“@westportct.gov” to and or from rorytagert@yahoo.com since February 1, 2015;
 
f. Any and all emails sent or received by any email address “@westportct.gov” to and or from Skip.Lane@cushwake.com since February 1, 2015;
 
g. Any and all emails sent or received by any email address “@westportct.gov” to and or from Adam.Klimek@cushwake.com since February 1, 2015;
 
h. Any and all emails sent or received by any email address “@westportct.gov” to and or from marc@onthemarcevents.com since February 1, 2015;
 
i.  Any and all emails sent or received by any email address used by the Charlie Haberstroh, Chairman of the Parks Recreation Committee for the Town of Westport, to and or from the following email addresses:
since February 1, 2015 concerning the Town of Westport owned       property at 260 South Compo Road.
     3.  It is found that, by letter dated April 6, 2015, the respondents acknowledged the complainant’s record requests, described in paragraph 2, above, and informed him that they needed additional time to search for and review any responsive records, which would then be forthcoming.
 
     4.  It is found that, on April 22, 2015, the respondents sought clarification with respect to the requests detailed in paragraphs 2(e) through (h), above, as to whether the requests were to be limited to those records concerning “Town of Westport owned property at 260 South Compo Road,” in the same manner as the request described in paragraph 2(i), above, was limited.
 
     5.  It is found that, by letter dated April 24, 2015, the respondents notified the complainant that records responsive to his requests described in paragraph 2(a) and (i), above, were available.  It is further found that in that April 24th letter, respondents informed the complainant that the requested record described in paragraph 2(c), above, did not exist; that there were no responsive records maintained by the respondents with respect to the requests described in paragraphs 2(b) and (d), above, and reminded the complainant that they were waiting for clarification regarding requests described in paragraph 2(e) through (h), above. 
 
     6.  By email dated May 7, 2015 and filed on May 8, 2015, the complainant appealed to this Commission, alleging that the respondents failed to provide copies of certain records referenced in paragraph 2, above, in violation of the Freedom of Information (“FOI”) Act.
 
     7.  Section 1-200(5), G.S., defines “public records or files” as:
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.
     8.  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.
     9.  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.”
 
     10.  It is found that, to the extent that the records identified in paragraph 2, above, exist and are maintained by the respondents, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S., and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
 
     11.  At the hearing in this matter, the complainant conceded that he had received responsive records from the respondents, but contended that the respondents did not fully comply with any of the requests, described in paragraph 2, above.
 
     12.  The respondents did not claim any exemption to disclosure.  Rather, the respondents asserted at the hearing that they conducted a diligent search and provided all responsive records they maintained to the complainant. 
 
     13.  It is found that the respondents communicated frequently with the complainant in an effort to fully understand the scope of his request, and that responsive records were made available on several occasions, including on May 14, 2015.2

2
The Commission notes that the parties exchanged several other communications between May 8, 2015 and May 12, 2015 that showed a willingness by the respondents to comply with the complainant's request. Those same communications also contained various assertions made by the complainant of noncompliance with the Freedom of Information Act regarding alleged redactions of certain electronic communications. However, those particular assertions were not raised at the hearing, and are therefore deemed abandoned and shall not be considered herein.

 
     14.  With respect to the request described in paragraph 2(a), above, for records related to the Longshore evaluation, it is found that the complainant was provided responsive records, including a Market Rent Analysis for the Inn at Longshore, dated March 20, 2006, which were the only responsive records maintained by the respondents.  No contrary evidence was presented at the hearing.
 
     15.  It is found that there were no responsive records maintained by the respondents with respect to the request described in paragraph 2(b), above, for records used to create the Longshore evaluation.  Despite the complainant’s assertion that comments were allegedly made during public meetings by the First Selectman referencing certain records related to a lease between the town of Westport and the tenant occupying the Longshore property, it is found that such public comments alone do not support the conclusion that additional records exist beyond those provided to the complainant, or that the respondents maintain any such additional records.
 
     16.  It is found that an outside consultant was retained to prepare the Longshore evaluation (also referred to as Market Rent Analysis), which is a public record within the meaning of §1-200(5), G.S., as it was prepared for the benefit of the respondents and paid for by the respondents.  As stated in paragraph 14, above, the respondents provided a copy of the March 20, 2006 Market Rent Analysis to the complainant.3

3
There was no evidence presented at the hearing that the consultant maintained any additional records created and/or used in conjunction with its preparation of the Market Rent Analysis.

     17.  With respect to the request described in paragraph 2(c) and (d), above, for records related to a 2006 Longshore Request for Proposal (“RFP”), it is found that the respondents do not maintain any responsive records because no such RFP existed.  It is found that the complainant’s only basis for asserting that such a RFP did exist is a reference to the proposed formulation of an RFP made at a February 1, 2006 Board of Finance meeting.  It is further found that such reference alone, does not support the conclusion that additional records exist beyond those provided to the complainant, or that the respondents maintain any such additional records.
 
     18.  It is found that the respondents provided the complainant with all of the responsive records as described in paragraphs 2(e) through 2(i), above, that they maintain, which included electronic communications between certain individuals.  While the complainant asserted that certain electronic communications were withheld, no evidence was presented at the hearing to support that assertion. 
 
     19.  The respondents provided ample testimony regarding the scope of their search for responsive records, which included coordinated efforts with several departments in the town of Westport, including the Parks and Recreation department, Board of Education, the Finance department and the IT department, and it is found that the respondents provided the complainant with all responsive records, as described in paragraph 2, above, which they maintain.
 
     20.  During the hearing, certain allegations were made regarding the respondents’ actions in conjunction with a previous FOI complaint filed by the complainant in the present matter against the respondents (Docket #FIC 2015-023).  However, such allegations were not fairly raised in the complaint.  Accordingly, the Commission declines to make any findings related to that alleged conduct as it is immaterial to the issues brought forward in the complaint presently before the Commission.4

4
The Commission takes administrative notice of that previous complaint (Docket #FIC 2015-023), only to note its lack of relevancy to the complaint presently before the Commission.

 
      21.  Consequently, it is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S.
 
     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 January 13, 2016.
 
 
 
__________________________
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
Dave Morton
190 Main Street
Westport, CT  06880
 
Gregory Slate
2300 8th Street, NW
Suite 21020
Washington, DC
 
First Selectman, Town of Westport; and Town of Westport
c/o Gail Kelly, Esq.
Peter V. Gelderman, Esq.
Berchem, Moses & Devlin, P.C.
1221 Post Road East
Westport, CT  06880
 

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
 
 
 
 
FIC/2015-325/FD/cac/1/13/2016




Content Last Modified on 1/27/2016 4:39:50 PM