FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

William J. Beach,

Complainant

against Docket #FIC 88‑362

Chairman, Winsted Zoning Board of Appeals and Winchester Building Inspector,

Respondents December 14, 1988

The above‑captioned matter was heard as a contested case on October 31, 1988, 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 record, the following facts are found:

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

2. The Winsted zoning board of appeals ("ZBA") held a meeting on June 28, 1988, during which it considered and granted a request for a variance concerning property on Smith Hill Road. The board used a tape recorder during the public hearing portion of the meeting, pursuant to §8‑7a, G.S.

3. On August 12, 1988 the complainant, who attended the June 28, 1988 ZBA meeting and tape recorded the proceedings, made a request of the Winsted town clerk for minutes of the ZBA's May, June and July, 1988 meetings.

4. The town clerk provided the complainant with minutes of the May and July meetings and informed him that minutes of the June meeting were not available.

5. The minutes of the July meeting state that there were no minutes to be acted upon due to the lack of a secretary during the month of June.

6. The complainant next made a request for a copy of the tape recording of the June 28, 1988 meeting and was informed by the respondent building inspector that the tapes presumably recorded at the June 28, 1988 meeting were, in fact, blank.

Docket #FIC 88‑362 Page Two

7. By letter of complaint dated and filed with the Commission on September 8, 1988 the complainant appealed the respondents' failure to make available the tape recording and minutes of the ZBA meeting of June 28, 1988, and requested that the meeting be declared null and void.

8. It is found that, through mechanical or human error, no tape recording of the ZBA's June 28, 1988 meeting exists.

9. It is concluded that the respondents' failure to provide the complainant with a tape recording of the ZBA's June 28, 1988 meeting did not violate §§1‑15 or 1‑19(a), G.S.

10. The respondents moved to dismiss the complaint on the ground that they have satisfied their burden under the Freedom of Information Act by providing the complainant with all existing records.

11. It is found that, with respect to minutes of the June 28, 1988 meeting, the issue is not whether the respondents have provided the complainant with all existing records, but whether the respondent chairman complied with the requirement of §§1‑19(a) and 1‑21(a), G.S. that each public agency keep minutes of its meetings and make them available to the public.

12. The respondents also moved to dismiss the complaint on the ground that the complaint was filed more than 30 days after both the June 28, 1988 meeting and the alleged failure to file minutes of such meeting.

13. It is found that the responsibility to create minutes and make them available for public inspection is a continuing one and that the failure to meet such responsibility is a continuing violation from which the complaint was timely filed.

14. The respondents' motion to dismiss, therefore, is denied to the extent that it is based on the grounds stated in paragraphs 10 and 12, above.

15. It is found that as of the date of hearing no minutes of the June 28, 1988 ZBA meeting were available to the public.

16. The respondent chairman claims that the failure to create minutes of the ZBA's June 28, 1988 meeting was due to a misunderstanding on the part of the secretary who was to draft them, compounded by the fact that the tape recording of the meeting was blank.

17. It is found that there exists a copy of the agenda of the June 28, 1988 meeting upon which the respondent chairman noted the ZBA's actions.

Docket #FIC 88‑362 Page Three

18. It is therefore concluded that the lack of a tape recording of the meeting did not significantly affect the respondent chairman's ability to create and place on file minutes of the ZBA's June 28, 1988 meeting.

19. It is further concluded that the respondent chairman's failure to create and place on file for public inspection minutes of the ZBA's June 28, 1988 meeting violated §1‑19(a) and 1‑21(a), G.S.

20. The Commission declines to declare the actions taken at the June 28, 1988 ZBA meeting null and void, as requested by the complainant.

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

1. The complaint is dismissed with respect to the respondent building inspector.

2. The respondent chairman, within three days of the mailing of the Notice of Final Decision in the above matter, shall create and place on file for public inspection minutes of the Winsted ZBA's June 28, 1988 meeting.

3. The respondent chairman, within four days of the mailing of the Notice of Final Decision in the above matter, shall provide the complainant with a copy of the minutes of the Winsted ZBA's June 28, 1988 meeting.

Approved by order of the Freedom of Information Commission at its special meeting of December 14, 1988.

Catherine H. Lynch

Acting Clerk of the Commission