Legal Brief
Burden of Proof
Page 114 of Tait’s Handbook of Connecticut Evidence ( Colin c. Tait
and Eliot D. Prescott, Tait's Handbook of Connecticut Evidence, 4th.
ed. 2008) states in Sec. 3.3.3 General Principles “ Whoever asks the
court to grant judgment regarding any legal right or liability has the
burden of proving the existence of the facts essential to his or her
claims… However Tait clarifies with the following…” Normally the
burden of proof is on the party having the affirmative of an issue, and
a party is not reacquired to prove the negative. For example, if the
issue is marriage vel non, it is more practical and efficient to prove one
is married than to prove one is not divorced( Page 115, op. cit.).
Herein lies the crux of the issue before the Hearing Officer, for in this
matter it is more practical for the respondent to prove that a
document or documents were given to the complainant than it is for
the complainant to prove that the documents were not given to him. In
this case, to quote Tait…” a party is not reacquired to prove the
negative”…i.e., it is not practical for the complainant ( DeAngelis ) to
prove that he was not given
requested documents.
The respondent’s claims that certain documents were given to the
complainant rest upon the testimony of individuals connected directly
to the respondent in the following manner:
a. The testimony of a paid staff member of the Attorney representing
the MVFD was provided,
b. The testimony of the client of the Attorney representing the MVFD
was provided.
Furthermore
c. A withdrawal of a complaint by the complainant was cited as
“evidence’. This is issue is dealt with in the following material.
The above issues will be developed fully in sections of the brief that
follow. The issue at hand is not, as claimed by the respondent that
some random documents were produced but rather, the question of
import is whether or not the documents requested by the complainant
were produced.
Facts:
The respondent’s attempt to amalgamate two separate FOI requests
into one issue i.e., to imply or state that the request of Nov. 25, 2007
and the request of Nov. 17, are merely subsets of each other is
incorrect, misleading and serves no purpose other than to continue to
delay the delivery of documents that were originally and subsequently
requested.
The original request of Nov. 25, 2007 was responded to by the
respondent in the following manner:
Voluminous amounts of incidental and superfluous materials were
presented to the complainant at the Town Hall in the first instance..
Very little of what was asked by the complainant was presented.
On occasion number two, (Oct. 15, 2008 ) materials were gathered
at the Middlebury Fire Department. When the complaintant and his
witnesses arrived, one volunteer fireman was present along with a
young woman who vaguely stated that she “worked” for Atty.
Leonhardt. Her role in being there was never established. Neither
Chief Perrotti nor any other Fire Dept. officers were present save the
treasurer. At no time did Mr. Michaud, the volunteer treasurer, or the
young woman state that they had the authority to access any
materials other than the one or two boxes of miscellaneous materials
that were placed on the table. The documents produced were barely
germane to what was requested. After a brief review of the mostly non-
appropriate materials, the complainant left after asking for some
documents to be copied. . Sensing some confusion on the part of the
respondent, the attorney for the complainant sent a letter in which he
attempted to clarify the request.
The complainant and his witness attended another meeting held at
Fire Department Headquarters on November 7, 2008.Two lone boxes
of materials were presented to the complainant and his witness. The
majority of the materials presented in no way responded to the
request of the complainant .The young woman from Atty. Leonhardt's
office was also present.
Mr. Perrotti left early in the session of this Nov. 7 meeting and put
the other volunteer “in charge”. The unnamed volunteer later stated,
upon being asked by the complainant for additional materials, that he
was not allowed to access any other boxes of materials other than
those that were present at that had been placed on the table in the
large meeting hall. The complainant came across some materials not
specifically in the request and asked that they be copied.
No MVFD checks , check registers, W-3 forms or 1096 forms that
the complainant had requested were present that day ( Nov 7, 2008 )
on that table. At no time did the unnamed fireman or the young
woman from attorney Leonhardt’s office indicate that they had access
to the locked room where the remainder of the files resided. Neither
offered to provide additional documents.( Attachment "Mattson". )
Several telephone bills that continued a previous violation of the
Fire Chief were present and the complainant asked for copies to be
made. Complainant was told that the attorneys in the case would
handle the details of the copies. Due to the illness of the complainant’
s attorney’s father and the need for said attorney to see to his Dad’s
medical care and well being, the copies were left in abeyance for a
while.
Later in the day the complainant’s attorney suggested that the
original request of Nov. 25, 2007 was too vague. When the complaint
asked if he should “clarify” it, the attorney said “no” as that any
clarification would constitute a new request. He further suggested that
the vague request the complainant had made of the MVFD may have
been “satisfied” with the vague response of the MVFD . He further
went on to state that the very vagueness of the complainants Nov. 25
request was almost impossible NOT to satisfy due to its vagueness.
He further suggested that the complainant should withdraw his Nov.
25 request and file a carefully worded, clear request that would be
simple to understand and that the new said request would ask for
specific documents. Even as late as Dec. 1, 2008 Atty Leonhardt , the
attorney for the respondent confirmed the cmoplaintant's notion that
the respondent had difficulty in comprehending the nature of the
requests as the respondant so stated in her email and letter to the
complainant of Dec. 1, 2008. In said letter she asks the complainant
to “please help us to understand what you are seeking to inspect.”
(her Exhibit # 9 in her “Respondents’ Reply attachment MAML 9 ).
The complainant filed a second FOI request on Nov. 17, 2008. The
second request is distinct and separate from the first request and in
no manner represents a subset of the first. In fact, even if one were to
stretch the envelope of logic, the materials in the second request were
never forthcoming which makes the issue of a “subset” moot.
Argument
1. The issue at hand is a simple matter. Has the complainant been
afforded the right of access to records he has requested in his Nov.
17, 2008 request? The issue presented by the respondent is
concerned with the number of times various documents have been
presented, regardless of whether or not the documents in question
were those requested by the complainant. Being afforded the
opportunity to review documents that the respondent felt comfortable
in sharing is far removed from the point of the complainant being
afforded the right to review documents actually requested. Realizing
the original vague wording of his first request the complainant, at the
behest of his then attorney, submitted a simple, more direct request
on Nov. 17. 2008. It is that request that has never been satisfied and
that request alone is what is at issue at present..
2. It is somewhat ironic that the respondents claim that the documents
requested by complainant were provided to the complainant is best
contradicted by the very list provided by the respondent at the April 15
hearing. (attachment MAML copies ) . A careful perusal of this
document (document represents copies given to the complainant as a
result of the meetings of Oct. 15 and Nov 7 of 2008 ) indicates which
documents were given to the complainant . The list indicates quite
clearly that: NO checks written by the Fire Dept treasurer to individual
fire fighters were produced, NO copies of the Fire Dept.’s check
register were produced, no IRS forms and no audit reports are on the
list of materials that were given to the complainant. This is the list
provided to the Hearing Officer by the respondent, not by the
complainant.
The respondents list of copies shows what was given to the
complaintant and illustrates the corollary by showing, what was not
given to the complainant. None of the matters listed in the complaint
at issue are included on that list because, in fact, none of those
materials were shown to the complainant. The complainant, as stated
in Tait’s Handbook cannot prove the negative, i.e., he cannot prove
what was not given to him. However the respondent, with the
production of this list has clearly proved to the Hearing Officer that the
affirmative statement of the respondent (that the documents were
given to the complainant) is not borne out by the very list provided by
the respondent. The respondent in fact has very neatly proved the
case for the complainant.
Conclusion
At the April 15, 2009 hearing the FOI hearing officer asked the
complaintant to enumerate which points in his Dec. 9, letter were not
satisfied. ( attachment exhibit 12, scroll to DeAngelis letter of Dec. 9)
Mr. DeAngelis testified accordingly that items 1-8 were never
presented for inspection.
Mr. DeAngels testified that items 9-14 were partially fulfilled.
Mr. DeAngelis testified that item 15 was never presented for
inspection.
Solution
It appears that if item 15, the audits mentioned by Mr. Belden at the
first hearing on this matter, were actually given to Mr. DeAngelis, such
an action would make the complainants requests of items 9-14 moot
as the information requested in 9-14 would be covered in said audit.
Accordingly if Mr. DeAngelis were to be actually given the opportunity
to inspect items 1-8 and item 15 this entire complaint would fall away..
For the respondent to request that the FOI Commission accept
their position that the complainant has allegedly inspected certain
materials inonwithstanding the fact that the complaintent has sworn
to the contrary and to which no evidence contradicting the
complaintant has been produced is asking the FOIC to begin a
descent down that fabled slippery slope. This “slope”, asks that the
FOI Commission overtly countenance a new type of compliance in
which the spoken word would take precedence over actual
compliance. Or to put it in today’s terms, virtual reality would trump
physical reality. Such an action would mean that FOI “compliance”
would henceforth require nothing more than a respondent offer up
departmental documents of their own choosing rather than those
documents requested.
Pat DeAngelis
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