FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of Complaint by Final Decision

Michael J. Gessay,

Complainant

against Docket #FIC 89-83

Bureau of Public Transportation,State of Connecticut, Department of Transportation,

Respondent September 27, 1989

The above-captioned matter was heard as a contested case on July 20, 1989, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the case.

After consideration of the entire matter, the following facts are found and legal conclusions reached:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. By letter dated March 3, 1989, and filed with the Commission on March 6, 1989, the complainant appealed to the Commission, alleging that at the respondent's public hearing of February 2, 1989:

a. the respondent restricted access to a public meeting.

b. the respondent failed to provide proper notice of a continued hearing.

3. The respondent claims that the Commission lacks jurisdiction over this case because the FOIA does not apply to hearings held as contested cases pursuant to the Uniform Administrative Procedures Act (UAPA).

4. It is found that the hearing held on February 2, 1989, pursuant to the UAPA is a meeting within the meaning of §1-18a(b), G.S.

5. The respondent further claims that it did not violate the law because no one was asked to leave the hearing room.

Docket #FIC 89-83 Page Two

6. It is found that, at the hearing on February 2, 1989, the respondent announced the room had a maximum room capacity of 30 persons.

7. It is found that more than 30 persons, including the complainant, wished to attend the hearing.

8. It is found that the hearing officer passed around a sign-in sheet to record the names of attendees present in order to determine whose presence was required at the hearing (i.e., counselors, department staff, and those subpoenaed).

9. It is found that the attendees whose presence was deemed not to have been required were informed they may be asked to leave the hearing in order to comply with the fire marshall regulation.

10. It is found that the respondent never actually asked any of the attendees to leave the hearing room.

11. It is found, however, that certain attendees did indeed leave under the impression that they may be later asked to.

12. It is found, consequently, that the respondent imposed an improper precondition of attendance of the February 2, 1989 hearing with the use of the sign-in sheet.

13. It is concluded, therefore, that the respondent violated §1-21(a), G.S.

14. It is found that the hearing did reconvene at the new location on March 2, 1989.

15. It is found that notices for the March 2, 1989 hearing were not posted until immediately prior to the commencement of that hearing.

16. It is found, consequently, that certain members of the public, including the complainant, who wished to attend the continued hearing had difficulty finding its location because the respondent failed to provide proper notice.

Docket #FIC 89-83 Page Three

17. It is concluded, therefore, that the respondent violated §1-21e, G.S.

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

1. The respondent henceforth shall act in strict compliance with §§1-21e and 1-21(a), G.S.

PURSUANT TO 4-180(c) C.G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

MICHAEL J. GESSAY, 5 Pleasant Street, Rockville, CT 06066

BUREAU OF PUBLIC TRANSPORTATION, STATE OF CONNECTICUT, DEPARTMENT OF TRANSPORTATION, c/o Geeorge E. Finlayson, Esq., Assistant Attorney General, 55 Elm Street, Hartford, CT 06106

Approved by order of the Freedom of Information Commission at its regular meeting of September 27, 1989.

Tina C. Frappier

Acting Clerk of the Commission