Final Decision FIC2015-445
In the Matter of a Complaint by
||Docket #FIC 2015-445|
Commissioner, State of Connecticut,
Department of Emergency Services
and Public Protection; and State of
Connecticut, Department of Emergency
Services and Public Protection,
March 23, 2016
The above-captioned matter was heard as a contested case on December 2, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts 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. By letter dated July 8, 2015 and filed July 9, 2015, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with an in camera order that issued in connection with a previous complaint, which this complainant had filed against these respondents.
3. The Commission takes administrative notice of the final decision in Docket #FIC 2013-167, James Torlai v. Commissioner, 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 (Jan. 8, 2014) (referred to hereinafter as “Torlai I”).
4. In the instant matter, the complainant contends that, in context of Torlai I, the hearing officer issued an in camera order, requiring the respondents to submit the records at issue to the Commission for an in camera inspection. (See Torlai I, In Camera Order, Oct. 8, 2013). It is found that the respondents did submit the records at issue to the Commission for in camera inspection. The complainant contends, however, that the respondents failed to submit all of the responsive records in their possession to the Commission for an in camera inspection and therefore failed to comply with the in camera order of the hearing officer in Torlai I. Specifically, the complainant deems the instant appeal a “non-compliance” appeal because he now “believe[s] that the State Police withheld records from the hearing officer.”
5. In the final decision in Torlai I, the Commission ordered the respondents, in relevant part, to provide to the complainant with a copy of those portions of the in camera records determined not to be exempt from disclosure. Based on the testimony in the instant matter, it is found that the respondents complied with the final decision in Torlai I.
6. Accordingly, it is concluded that there is no non-compliance with a final Commission decision to adjudicate in the instant case.
7. In addition, there is no basis upon which to construe the instant appeal as one concerning a request for and a denial of public records.
8. The evidence produced at the contested case hearing in the instant matter reveals that, in June 2014, the complainant began to question the respondents about the thoroughness of their compliance with the hearing officer’s October 8, 2013 in camera order in Torlai I. The complainant contended that his concern began when he discovered two records that he believed should have been, but were not, submitted to the Commission in connection with the hearing officer’s in camera order in Torlai I. In other words, it is found that the complainant waited 149 days after the issuance of the final decision in Torlai I, to contact the respondents about their compliance with the in camera order in that matter.
9. It is further found that the complainant’s last correspondence with the respondents concerning their alleged non-compliance with the in camera order in Torlai I occurred on June 9, 2014, and the appeal in the instant matter was filed on July 9, 2015. Accordingly, it is found that the complainant allowed 396 to elapse between his last written communication with the respondents and the filing of the appeal in the instant matter.
10. Section 1-206(b)(1), G.S., provides, in relevant part, as follows:
Any person denied the right to inspect or copy records under section 1-210. . . or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed not later than thirty days after such denial. . . .
11. It is concluded that the respondents’ compliance with an in camera order issued by a hearing officer is not a right conferred upon the complainant by the FOI Act, within the meaning of §1-206(b)(1), G.S. It is further concluded that the Commission does not have subject matter jurisdiction over the complaint herein.
12. Finally, for the sake of clarity, the Commission notes that no evidence was elicited during the contested case hearing in the instant matter that in any way establishes or gives rise to an inference that the respondents failed to comply with the in camera order that issued in Torlai I.
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 March 23, 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:
127 Barton Street
Torrington, CT 06790
Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection; and State of Connecticut,
Department of Emergency Services and Public Protection
c/o James W. Caley, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT 06105
Cynthia A. Cannata
Acting Clerk of the Commission