FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Kevin T. Mullane and Beechwood Gardens Tenants
Association,
Complainants
against Docket
#FIC 88-121
Commissioner, State of Connecticut Department of Housing,
Respondent August
10, 1988
The above-captioned
matter was heard as a contested case on May 23, 1988, at which time the
complainants and the respondent appeared, stipulated to certain facts and
presented testimony, exhibits and argument on the complaint.
After consideration of
the entire record, the following facts are found:
1. The respondent is a public agency within the
meaning of §1-18a(a), G.S.
2. By letter dated March 18, 1988, the
complainants requested to inspect and/or copy the following records:
a.
All of the documents in the Beechwood Gardens moderate rental housing
project's management file.
b.
All financial and operating statements filed after June 30, 1987 for the
Beechwood Gardens moderate rental housing project.
c.
The records of every public hearing conducted by the respondent pursuant
to §8-74, G.S., including tapes, for proposed moderate rental housing projects
by developers.
3. By letter dated March 29, 1988, the
respondent's deputy commissioner denied the complainants' request on the ground
that their request should have been made through the discovery process due to a
pending lawsuit.
4. By letter of complaint dated and filed with
the Commission on March 31, 1988, the complainants alleged that they were
denied access to public records.
Docket #FIC 88-121 Page 2
5. On May 16, 1988, the respondent filed a
motion to dismiss with the Commission, but withdrew the motion at the hearing.
6. Prior to the hearing, the respondent
provided the complainants with access to his files regarding the Beechwood
Gardens moderate rental housing project.
7. The respondent, therefore, has provided the
complainants with access to the records described in paragraphs 2a and 2b,
above, and they are no longer at issue.
8. The respondent offered to provide access to
the tapes of the hearings.
9. At the hearing, the complainants clarified
their request for the public hearing records described in paragraph 2c, above,
stating that they sought access to the public hearing records as well as the
minutes of every public hearing and the record of votes taken on each project.
10. The respondent claims that:
a. He
has provided the complainants with copies of the public hearing records
concerning proposed moderate rental housing sites.
b.
Since he is a single-member public agency, his hearings do not
constitute meetings under the Freedom of Information Act (hereinafter
"FOIA") and he is not required to file minutes of every public
hearing and to record his vote on each proposed housing site.
c.
Even if the hearings are meetings subject to the FOIA, the public
hearing records constitute minutes of the meetings.
11. The Commission takes administrative notice
of the records and final decisions in its contested cases, Docket #FIC 86-84
and Docket #FIC 86-167.
12. It is found that pursuant to §8-74, G.S.,
the respondent is required to hold a public hearing concerning the suitability
of a proposed moderate rental housing project by a developer.
13. It also is found that pursuant to §1-18a(b),
G.S., a meeting is defined, in part, as any hearing of a public agency.
Docket #FIC 88-121 Page 3
14. It is concluded to the extent that the
respondent's hearings constitute meetings within the definition of §1-18a(b),
G.S., such hearings are subject to the meeting requirements of the FOIA, as set
forth in Chapter 3, G.S.
15. It is found that the respondent has provided
the complainants with copies of the written public hearing records.
16. It is found that the respondent's public
hearing record contains the time, place and date of the hearing, the name of
the person conducting the hearing, the time the hearing commenced and
concluded, the subject of the hearing and the finding and declaration of
project site approval by the respondent.
17. It is found that pursuant to §1-19(a), a
public agency shall make, keep and maintain a record of the proceedings of its
meetings.
18. It is found that pursuant to §1-21(a), G.S.,
a public agency shall make the minutes of a meeting available for public
inspection within 7 days of the session to which they refer.
19. At a minimum, the minutes of a meeting shall
reflect the time, place, and date of the meeting, the identities of agency
members, the business transpired at the meeting (e.g., a public hearing was
held for a certain purpose), and how each agency member voted on each issue
before the agency meeting.
20. It is found to the extent that the
respondent's public hearing records reflect the time, place and date of the
meeting, what agency member was there and the subject of the hearing, such
records are sufficent to constitute minutes of the meetings within the meaning
of §1-21(a), G.S.
21. It is found, however, that the respondent's
public hearing records are not made available for public inspection within 7
days of the hearing to which they refer.
22. It therefore is concluded that the
respondent violated §1-21(a), G.S., by failing to make minutes, or as in this
case, public hearing records, available for public inspection within 7 days of
the meeting to which they refer.
23. With respect to the record of votes taken on
proposed housing sites, it is found that the purpose of the hearing is to take
evidence concerning the nature and character of the area and neighborhood
involved and no "vote" is taken.
24. It is found subsequent to the public
hearing, the respondent reviews the file of a particular proposed housing
Docket #FIC 88-121 Page 4
site and his approval or disapproval of the site is then reflected in
the public hearing records. The public
hearing records do not reflect a "vote" taken on each proposed site.
25. It is found that pursuant to §1-21(a), G.S.,
the votes of each member of a public agency shall be reduced to writing and
made available for public inspection within 48 hours of the meeting at which
they were taken. The votes also shall
be recorded in the minutes of the meeting to which they refer.
26. It is found, however, that the requirement
to record votes applies to multi-member public agencies, and that as a
single-member public agency, the respondent is not required to record his
"vote" concerning site suitability within the meaning of §1-21(a),
G.S.
27. It therefore is concluded that the
respondent did not violate §1-21(a), G.S., by failing to record a
"vote" concerning the site suitability for each proposed housing
project.
The following order by
the Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. Henceforth, the respondent shall act in
strict compliance with the requirements of §1-21(a), G.S., concerning the
filing minutes and the making of them available for public inspection within 7
days of the meetings to which they refer.
2. The respondent shall forthwith designate the
record of every public hearing described in paragraph 2 of the findings, above,
as the minutes of the meetings.
3. The Commission notes this decision should
not be construed as requiring the respondent to make a determination of site
suitability within 7 days from the date a public hearing is held on a
particular housing site. The respondent
merely needs to make, keep and maintain minutes of each hearing, setting forth
the minimum requirements as described in paragraph 18 of the findings, above,
and make them available to the public in a timely manner.
Approved by order of
the Freedom of Information Commission at its special meeting of August 10,
1988.
Catherine
H. Lynch
Acting
Clerk of the Commission