FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

M. A. Antar,

Complainant

against Docket #FIC 86-287

First Selectman and Zoning Board of Appeals of the Town of Bethany,

Respondents February 25, 1987

The above-captioned matter was heard as a contested case on December 9, 1986, 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 matter, the following facts are found:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. By letter of complaint filed with the Commission on October 10, 1986 the complainant alleged he had been denied access to public records.

3. It is found that at meetings held March 10, 1986 and April 14, 1986 the respondent board considered a variance application submitted by George Scarveles.

4. By letter to the respondent first selectman dated September 19, 1986 the complainant made a request for certain documents relating to Mr. Scarveles's variance application.

5. By letter to the respondent first selectman dated October 5, 1986 the complainant stated he had not yet received the following documents:

a. A copy of the application;

b. A copy of a January 3, 1986 letter signed by Gerald Dwyer, town counsel;

c. Minutes of a March 10, 1986 meeting of the respondent board, including the record of votes and the minutes of the "executive" session; and

Docket #FIC 86-287 Page Two

d. Minutes of an April 14, 1986 meeting of the respondent board, including the record of votes and minutes of the "executive" session.

6. The complainant further alleged that the records of the respondent board were not kept at the town hall, but in the home of its secretary, Mr. Carrone.

7. Subsequent to the filing of his complaint the complainant made requests of the Bethany planning and zoning commission (P&ZC) for certain documents. The respondent board and the P&ZC, however, are two different town agencies whose documents are maintained separately. Such later requests, therefore, are not encompassed by the original complaint and will not be considered in this report.

8. The complainant claims that in providing a copy of Mr. Scarveles's application the respondent board improperly omitted the final page.

9. It is found that requests for variances are filed on a printed, four-page form, the back page of which is not used. It is concluded that the respondent board's response to the complainant's request for a copy of Mr. Scarveles's application did not violate 1-15, G.S. The Commission notes that the failure to provide a copy of such final page upon specific request would violate 1-15, G.S.

10. It is found that the respondent board has in its files a January 3, 1986 letter from Gerald Dwyer, a copy of which was requested by the complainant. On October 2, 1986 the complainant was given a copy of Mr. Dwyer's unsigned file copy.

11. It is found that the respondent board's failure to provide the complainant with a copy of Mr. Dwyer's letter as it appears in the respondent board's files violated 1-15, G.S.

12. It is found that the respondent board did not exclude the public from any portion of either its March 10, 1986 or its April 14, 1986 meetings. The term "executive session" was used to designate the deliberative portions of the meetings. The respondent board indicated at hearing that it has discontinued such use of the term "executive session."

13. It is concluded that the failure to produce separate minutes of the portions of the March 10, 1986 and April 14, 1986 meetings designated "executive sessions" did not violate 1-19(a) or 1-21(a), G.S.

Docket #FIC 86-287 Page Three

14. The complainant claims he has not been provided with signed, approved minutes of the March 10, 1986 or April 14, 1986 meetings of the respondent board and that the minutes he was given did not contain a record of the votes taken.

15. It is found that the alleged failure to sign or approve minutes does not violate any provision of the Freedom of Information Act. However, the failure to include in the minutes of the meetings in question a record of the votes taken violated 1-19(a) and 1-21(a), G.S.

16. It is found that the respondent board has no office at town hall. All records of the respondent board are kept at the home of the board's secretary.

17. The respondent board claims that it keeps its records in the home of its secretary because adequate protection against loss or alteration is not available at the town hall, where only the town clerk and one other employee are available to safeguard records. The respondent board further claims that it has been willing to meet with the complainant for the purpose of allowing access to inspect original documents.

18. It is found that 1-19(a), G.S. requires each public agency which has no regular office or place of business to keep and maintain all public records in the office of the clerk of the political subdivision in which such agency is located.

19. It is concluded that keeping the records of the respondent board at the home of its secretary violates the requirements of 1-19(a), G.S. regarding the keeping of public records.

20. It is also concluded that keeping the records of the respondent board at the home of its secretary denied the complainant's right to inspect public records, in violation of 1-19(a), G.S.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The respondent board shall forthwith transfer its records from the custody of its secretary in his home to the custody of the town clerk at the Bethany town hall and shall henceforth keep and maintain all of its public records in the office of the Bethany town clerk.

Docket #FIC 86-287 Page Four

2. The respondent board shall forthwith provide the complainant with copies of minutes of its March 10, 1986 and April 14, 1986 meetings, including a record of the votes taken at such meetings.

3. The respondent board shall forthwith provide the complainant with a copy of the January 3, 1986 letter signed by Gerald Dwyer, referred to in paragraphs 5(b) and 10, above.

Approved by order of the Freedom of Information Commission at its regular meeting of February 25, 1987.

ÿ

Karen J. Haggett

Clerk of the Commission