Save yourself a trip to Hartford with overzealous compliance

2009 February 20
by Attorney Mark Dumas

A common complaint that I hear from Town Clerks is that they don’t want to be called up to Hartford to respond to a frivolous Freedom of Information appeal. Unfortunately, the only way to avoid that problem is to be overzealous in complying with the Freedom of Information law and FOI requests.Sometimes that means putting up notices well before you are required to be posted by the Freedom of Information Act.

The Borough of Woodmont recently learned that lesson the hard way with Stephen Borer, who has filed at least five Freedom of Information appeals against the borough, the most recent of which was ruled on by the Commission about a month ago.

You’ll read more on this blog about Stephen Borer in the coming months, but his most recent appeal is what matters when you want to know what I mean about overzealous compliance. Why? Because Borer complained about office hours for each month being posted on the first business day of that month instead of on the first day of the month.

Think that’s bad? He also complained because the borough, which only has one clerk, didn’t post the office hours for September 2008 until September 3, 2008. September 1, 2008 was a holiday. Guess what happened on September 2. The clerk was up in Hartford to be a witness for Borer’s Freedom of Information appeal!

The Commission ruled in the borough’s favor, but hopefully the borough learned an important lesson. You can save yourself a trip to Hartford by posting notices early.

3 Responses leave one →
  1. Stephen Borer permalink
    April 25, 2009

    CT Freedom of Information Commissioners
    18-20 Trinity Street
    Hartford CT 06106
    CT FOI Commission FAX 860-566-6474

    From: Stephen R. Borer
    P.O. Box 328
    Stratford CT 06615
    Cell 889-1024
    Date 12/30/08

    Subject: Brief: #FIC 2008-401

    A hearing was held on my complaint on September 2nd 2008. The hearing officer reviewed my complaint letter of June 11, 2008 with regard to the settlement agreement of 2007-612. The hearing officer stated, at the hearing “I think the issue before the commission is really the calendar and whether it was posted in a timely fashion in June.” The hearing officer’s framing of the question is a matter of record on the September 2nd, 2008 hearing audio tape (for FIC 2008-401) and is the basis of my complaint. The complaint was properly framed by the hearing officer at the hearing and he affirmed my contentions at the hearing. (See paragraph 4 of his report which states: “In the instant case, the complainant contends that the May 2008 calendar, which was posted on the front door of the Borough Hall and which listed the respondent’s office hours for May 2008, continued to be posted on June 3, 2008.”)
    This framing of the complaint along with the evidence provided at the hearing (complainants “E” a photo of a May calendar hanging on the front door of the borough hall on June 3rd 2008.) show conclusively that the calendar in question was in fact not posted in a timely fashion. For this reason I take issue with the Hearing officer’s proposed finding in paragraph 5, that the calendar was posted properly.
    Furthermore the Hearing officer’s own reported facts and the evidence clearly found the answer to his own question “I think the issue before the commission is really the calendar and whether it was posted in a timely fashion in June.” And the answer is, No!
    Paragraph 6 and 7 when applied to the evidence (photo of the calendar on June3rd “E”) does verify and confirm that the calendar was not timely. For instance (paragraph 7 administrative notice that June 1st was a Sunday) If it was found that the respondents practice in 6 as testified to, is to post the calendar in the evening on a Sunday preceding the start of a new month or in the morning on the first Monday of the month, (which would have been June 2nd) there would have been a June calendar on the doors of the borough hall on June 3rd which was a Tuesday. When in fact the evidence shows a May calendar displayed on June 3rd. How could this result be considered acceptable by the hearing officer when the complaint question is timeliness in June. These findings of facts in the hearing officer’s report do not validate his recommendation for a dismissal by the commission and does not satisfy our calendar settlement agreement. Your order in 2005-168 states: 1. Henceforth, the respondent shall strictly comply with the provision of §1-210(a), G.S.
    2. In complying with the order in paragraph 1 above, the respondent may choose to either establish and maintain regular business hours which hours may be on any one day for any length of time not less than one hour per week or maintain her records, or a copy thereof, at the Milford town clerks office.
    Approved by Order of the Freedom of Information Commission at its special meeting of April 12, 2006.
    The important question the commission could be asking Woodmont, is, please tell us what days and hours you are opening the hall?”
    This brings us to Hearing officer’s number 9 (the hearing officer’s opportunity paragraph) a paragraph asking the commission to take this opportunity to caution the complainant that his behavior toward the respondent is moving dangerously close to harassment. The complainant is further cautioned that should such behavior continue, he could be subject to civil penalties pursuant to §l-206(b)(2), G.S. (”If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard …, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.”).
    I would like to thank the hearing officer for reminding me of C.S. 1-206. I wish he had pointed to specifics with regard to my behavior toward the respondent in his report. Acceptance of Paragraph 9 by the commission even if this docket number is dismissed still casts a cloud of unwarranted suspicion over my behavior. Why the hearing officer chose to take the opportunity to call my behavior into question at this time are for reasons only he can understand or explain. Without mention of any specifics in the report, I find it unusual for him to expect the entire board or most especially me the complainant to accept his unfounded premise. Since this complaint and 2006-612 is all about how the public accesses the record in Woodmont and the implementation of 2005-168. I would refer the commission to Docket No. CV 06 4010811 Superior Court New Britain 2005-168 affirmed, page 6, the last 3 lines on the page intent of the act, which is to permit the public the right to access records, if desired, without fear of intimidation, retribution or being monitored. I have been putting up with intimidation, retribution and being monitored by the borough of Woodmont and their attorney since I began to seek records there. I’m very disappointed to think that I might now be dealing with the same problem in this format. But I firmly believe this was sole purpose for paragraph 9 being in the report, why else would it be there? Woodmont was found in violation of the act, is now in strict compliance, hasn’t had regular hours since the order came out and never received a cautioning paragraph like that. Also I question your meaning of “moving dangerously close” what exactly does this mean and how is it invoked, I’m not sure.
    Over all I thought the calendar remedy that the commission’s hearing officer recommended as settlement in 2007-612, was a sincere attempt to notify the public when the hall would be open for access. I sincerely tried to get it to work. In fact
    I was commended by the commission for my cooperation in the calendar settlement arrangement in your letter dated May 5th 2008. I still believe this calendar arrangement was a sensible solution to the problem of how to apprise people of when the hall would be open. One problem is the business hours being conducted by the borough were not regular, as required in the order 2005-168. If the recommended report for dismissal is adopted, then it would appear to me that the commission has decided they are not interested in working out the necessary details required to make the calendar arrangement work. It’s too bad this form of notification for the people didn’t work out. But an irregular hour with a late calendar is not the solution. A regular business hour on any one day as per your order is. In the future I will focus on the language in commission’s order in # FIC 2005-168.
    With respect to the recommendation for this complaint 2008- 401, I would ask the commission not to dismiss this complaint but to find as a remedy the removal of paragraph 9 (the cautioning paragraph, for lack of specifics and unequal implementation) and ask the borough to provide us with what one day per week and what hour the hall will be open since it was there decision to open the hall rather than have copies of the record at the Milford Town Clerks office as specified in FIC 2005-168.

    Cc: Respondent Borough of Woodmont, c/o Gerald Weiner, Esq.,
    350 Fairfield Avenue, Bridgeport, CT 06604

  2. Stephen Borer permalink
    April 25, 2009

    This matter concerns a settlement agreement that was offered by the commission and accepted by all parties in a pevious case, and violated by the borough. I am leaving a copy of my brief on your blog. If you would like any more information please contact me and I’ll get it to you. The bottom like is the commission did not want to police their own settlement agreement.This is all a matter of public record and available at FOI, you may want to look at the settlemnet agreement and review the hearing tapes and video in the previous matters.

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