Sulich v. Sear
It is fundamental that a public agency has a duty to disclose that it maintains records responsive to a request, even if the agency believes such records are exempt from disclosure. Karen Sulich appealed to the Freedom of Information Commission alleging that the town of Canterbury and Brian Sear, First Selectman, violated the Freedom of Information Act by failing to fully comply with her request for any correspondence for a stated period between certain individuals and entities including Sear and the town lawyer with the siting council, friends of the Quinebaug and Robert Noiseax. The respondent provided certain records to the complainant. At the hearing, the complainant stated that she obtained from other sources copies of other documents including emails and a petition that fell within the scope of her request that were not provided to her by the respondents. Sear testified that he provided to the complainant copies of all records he believed were responsive to the request but he did not provide the emails or disclose their existence because he believed such emails were "confidential" at the time. He further testified that he did not provide the petition because he believed it did not fall within the scope of the request. The FOIC found that the respondents did not offer any evidence to support the assertion that the emails were confidential at the time of the request. Sear ultimately agreed at the hearing to provide the complainant with copies of the emails. The FOIC found that the emails fell within the scope of the request and that the respondents violated C.G.S. §1-210(a) and §1-212(a) by failing to provide them. The FOIC concluded that Sear reasonably believed that the petition did not fall within the scope of the request and did not violate the FOIA by failing to provide a copy to the complainant. The respondents were directed to provide free copies of the emails to the complainant and were advised that it is fundamental that a public agency has a duty to disclose that it maintains records responsive to a request even if the agency believes such records are exempt from disclosure.