FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
Final Decision |
Linda D. Nelson, |
|
Complainant, |
|
against |
Docket #FIC 1995-333 |
Linnea Lomnicky; Barry A. Faticoni; Robert J. Reeve; Ronald Gold; Michael J. Chowaniec; Mary Janicki; Barbara Palmer; James Fenner; Robert Hoyt; Janis Tanner; James E.
Bransfield; and Burlington Charter Commission, |
|
Respondents, |
July 24, 1996 |
The above-captioned
matter was heard as a contested case on April 3, 1996, 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 and conclusions of law are
reached:
1. The respondents are
public agencies within the meaning of §1-18a(a), G.S., and are properly named
as parties in this complaint.
2. By letter of
complaint dated September 29, 1995 and filed with the Commission on October 2,
1995,, the complainant appealed to the Commission alleging that the respondents
violated the Freedom of Information ("FOI") Act by denying her access
to the minutes of the public hearings held on September 11 and 14, 1995, and by
maintaining the minutes of the respondent commission in the First Selectman's
of lice. The complainant requests that a civil penalty be imposed upon the
respondents.
3. It is found that on
September 25, 1995, the complainant visited the Burlington town clerk's
(hereinafter "town clerk") office and made a written request for a
copy of the respondent commission's public hearing minutes of September 11 and
14, 1995.
4. It is found that
the town clerk was unable to locate the requested minutes at the time of the
complainant's visit, as described in paragraph 3, above.
5. It
is found that on September 26, 1995, the complainant again visited the town
clerk's office and at that time the First Selectman provided her with a
transcript of the September 11 and 14, 1995 hearing proceedings.
6. It is found that
the respondent commission held a public hearing on September 11, 1995 and such
hearing was continued to and reconvened on September 14, 1995 (hereinafter
"hearing").
7. The complainant
contends that the respondents failed to timely provide her with the requested
hearing minutes; that the transcript of the September 14, 1995 portion of the
hearing is missing certain comments she made at the hearing; and that the
transcript of the hearing is kept in the First Selectman's office instead of
the town clerk's office..
8. At the hearing on
this matter, the respondents indicated that the respondent commission does not
create minutes of public hearings and that the respondent commission created a
transcript of the public hearing following the complainant's request. The respondents
requested that a civil penalty be imposed upon the complainant for filing a
frivolous complaint.
9. Section 1-18a(b),
G.S., defines "meeting" as "any hearing or other proceeding of a
public agency."
10. It is concluded
that the public hearing held on September 11 and 14, 1995 is a meeting within
the meaning of §1 ‑18(a), G.S.
11. Section 1‑l9(a),
G.S., provides in relevant part that "each such agency shall make, keep
and maintain a record of the proceedings of its meetings."
12. In addition, §1‑21(a),
G.S., provides that minutes shall be available for public inspection within
seven days of the session to which they refer.
13. It is concluded
that the transcript of the September 11 and 14, 1995 hearing is sufficient a
record to satisfy the minutes requirement of §§1-l 9(a) and 1-21 (a), G.S.
14. It is found that
the transcript of the hearing was made available to the complainant within
eight business days of such hearing.
15. It is therefore
concluded that the provision of access to the minutes of the hearing was one
day later than required by §1-21(a), G.S. Accordingly, the respondent
commission technically violated §1-21, G.S.
16. With respect to
the allegation concerning the missing comments of the complainant from the
minutes of the September 11 and 14, 1995 hearing, it is concluded that nothing
in the FOI Act requires that the respondent commission record in its minutes
the comments of all persons, and therefore the respondent commission did not
violate the FOI Act by failing to include the complainant's comments in its
minutes.
17. With respect to
the allegation concerning the First Selectman keeping the respondent
commission's minutes in his office, §1‑l9(a), G.S., provides in relevant
part that:
Each such agency shall
keep and maintain all public records in its custody at its regular office or
place of business in an accessible place and, if there is no such of flee or
place of business, the public records pertaining to such agency shall be kept
in the of flee of the clerk of the political subdivision in which such public
agency is located....
18. It is unclear from
the record whether the respondent commission maintains a regular office or
place of business.
19. It is concluded,
however, that in accordance with the requirements of §1-19(a), G.S., if the
respondent commission does maintain a regular office or place of business, its
records must be maintained there. If the respondent commission does not maintain
a regular office or place of business, then its records must be maintained in
the town clerk's office.
20. The Commission in
its discretion declines to impose a civil penalty upon either the complainant
or the respondents.
The following order by
the Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The respondent
commission shall henceforth maintain the records of such agency in accordance
with the requirements of §1-1 9(a), G.S., and as more fully described in
paragraph 19 of the findings, above.
2. The Commission
advises the respondents that, while a transcript of a public hearing will
usually satisfy the minutes requirements of §§1-1 9(a) and 1-21 (a), G.S.,
other forms of minutes may more easily be prepared to meet the seven day
requirement imposed by §1-21(a), G.S. However, any such public hearing minutes
must reflect at a minimum, the time, place and date of the hearing, the
identities of agency members present, the business transacted (e.g., the
subject or purpose of the hearing), and the votes, if any, of each agency member
on any issue before the agency.
Approved by Order of the Freedom of Information
Commission at its regular meeting of July 24, 1996.
__________________________
Doris V. Luetjen
Acting Clerk of the
Commission
ficl995-333/fd/mwp/07311996
PURSUANT
TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE
MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION,
OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE
PARTIES TO THIS CONTESTED CASE ARE:
Linda
D. Nelson
472
Jerome Avenue
Burlington,
CT 06013
Linnea
Lomnicky; Barry A. Faticoni;
Robert
J. Reeve; Ronald Gold; Michael J. Chowaniec;
Mary
Janicki; Barbara Palmer; James Fenner;
Robert
Hoyt; Janis Tanner; James E. Bransfield;
Burlington
Charter Commission
c/o
Atty. Charles W. Bauer
Eisenberg,
Anderson, Michalik & Lynch
136
West Main Street
P.O.
Box 2950
New
Britain, CT 06050-2950
__________________________
Doris
V. Luetjen
Acting Clerk of the
Commission