FOIC rules against Vernon, town administrator

By Suzanne Carlson
Journal Inquirer
Published: Tuesday, May 29, 2012 2:05 PM EDT

VERNON — The state Freedom of Information Commission voted Wednesday to overturn a hearing officer’s dismissal of a Sept. 30 complaint by the Journal Inquirer against Town Administrator John D. Ward and found that the town also committed public records violations in two additional cases.

While commission lawyer Kathleen K. Ross had recommended in a proposed ruling on May 1 that the newspaper’s complaint be dismissed, the commission found in a unanimous decision that Ward and the town did violate state laws governing prompt production of public records by government officials.

The issue began Sept. 30 when a Journal Inquirer reporter made a verbal request to Ward to inspect an arbitration decision by the state Labor Department, which had already been published online after former Republican Mayor Jason L. McCoy provided it to another news website.

The website stated that the document had been provided to the press “immediately” by McCoy, who told the Journal Inquirer on Sept. 29 that he would not respond to a reporter until 4 p.m. Nov. 7, an hour before he was scheduled to leave office.

But Ward said he was unaware of the decision, did not have a copy of it, and would need to consult further with town lawyers before deciding whether to release it.

The Journal Inquirer also provided the request in writing after being asked to do so by Ward, which is not a requirement of the Freedom of Information Act, and he refused to provide a similar written statement in reply.

Ross said — and the commission agreed Wednesday — that the Journal Inquirer “offered no evidence” at a Feb. 2 hearing on the matter that Ward had made a written statement a precondition to his fulfilling the request.

The Journal Inquirer was provided with the arbitration decision in an Oct. 14 email, and Ross said in her May 1 proposed decision that the two-week delay was not unreasonable because Ward was taking over responsibility for FOI requests from former Assistant Town Administrator Peter Graczykowski, who had recently resigned.

Ross also told commission members Wednesday that Ward had argued in the Feb. 2 hearing that when the Journal Inquirer made the request he was busy preparing for a Town Council meeting.

The Journal Inquirer argued in response that while Ward may not have been able to provide the decision at the time of the request, the town provided no explanation for the two-week delay. It was also argued that the time period was excessive for production of a document that already had been released to and published by another news agency.

Vernon Town Attorney Martin B. Burke, who introduced and helped draft the Freedom of Information law in 1975 and now represents the town in such matters, argued to the commission that Ross’s decision was proper because the Journal Inquirer’s request came at an inconvenient time for Ward.

Rather than Ward’s actively trying to prevent the Journal Inquirer from obtaining public information, the situation was a matter of unfortunate timing, Burke said.

But commission member Owen P. Eagan said that because the town provided the decision electronically, it should have been a simple matter for Ward to call McCoy, confirm his release of the decision, and provide it to the Journal Inquirer via email.

Commission member Matthew Streeter also said that while he understood preparing for a Town Council meeting could be hectic, the meeting occurred Oct. 4 but the town did not provide the decision until Oct. 14 and provided no explanation for the further 10-day delay.

He concurred with the Journal Inquirer’s position, saying that Ward should have been able to locate the decision and provide it to the Journal Inquirer after the council meeting had transpired, but did not.

Commission members voted to overturn Ross’s recommended dismissal and found that Ward had committed promptness violations, amending her ruling to include a statement ordering the town to forthwith strictly comply with all public records disclosure laws.

The commission also voted unanimously Wednesday to approve two additional decisions ordering the town to comply with disclosure laws. Those cases stemmed from requests for public documents by the Journal Inquirer on Sept. 19 and Sept. 29 during McCoy’s tenure as mayor.

In the Sept. 19 case, the town delayed production of public records for three months and took over a month to respond to the Sept. 29 request, both unnecessary delays, the commission said.