FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

Daniel O’Connor,

 

            Complainant

 

            against                                                                          Docket #FIC 1995-420

 

Board of Directors, Candlewood Isle

Tax District,

 

            Respondent                                                                  November 13, 1996

 

 

            The above-captioned matter was heard as a contested case on June 5, 1996, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  Docket #FIC 1995-416, Gwen Fremlin against Kathy Neth, Ellen Berk, John Lavagnino, Francine Leniston, Jerry Ryan, Edward Asvazadourian, Robert Maloney, Don Torre, Cindy Taylor, Linda Shine-Wise, and Candlewood Isle Tax District Board of Directors, was consolidated with the above-captioned case for purposes of hearing.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

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

 

            2.  By letter of complaint dated November 26, 1995, and filed with the Commission on December 6, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.  conducting its usual monthly meeting of its board of directors at a private residence on November 16, 1995;

 

b.  discontinuing its practice of tape recording its meetings;

 

                        c.  requiring the complainant to review public records at the New Fairfield

town hall; and

 

d.  failing to permit the complainant to inspect and copy the following items on November 10, 1995:

tapes that had been destroyed as a matter of practice; photographs of a security camera; and bills, receipts, proposals or contracts for the purchase of a security camera.

 

            3.  By way of addendum to his complaint, the complainant also requested that this Commission investigate the propriety of the respondent carrying a certain insurance policy, a relationship between a member of the respondent and the director of the tax district, and the alleged utilization by the tax district of public funds for private purposes.

 

4.  The respondent also filed a motion to dismiss for lack of subject matter jurisdiction on the basis that the Commission did not hear this appeal within thirty days of its receipt.

 

5.  Section 1-21i(b)(1), G. S., provides in relevant part that:

 

Said [FOI] commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal.  The [FOI] Commission shall adopt regulations in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for hearing.  Any such appeal shall be heard within thirty days after receipt of a notice of appeal and decided within sixty days after the hearing.  [Emphases added.]

 

6.  It is found that this appeal was filed on December 6, 1995 and was not privileged in its assignment for hearing.

 

7.  Consequently, it is concluded that the Commission has jurisdiction to hear and decide this appeal within one year of December 6, 1995. The respondent’s motion to dismiss is therefore, denied.

 

            8.  With respect to the allegation described in paragraph 2a., above, it is found that on November 16, 1995, a meeting of the respondent was conducted at the private residence of the tax district president (“president”).

 

            9.  Section 1-21(a), G.S., provides in pertinent part:

 

                         “The meetings of all public agencies … shall be open to the public ….”

 

10.  It is found that there was no evidence presented at the hearing to indicate that it was clear to the public that the private residence of the president was closed to the public within the meaning of §1-21(a), G.S.

 

 

11.  It is also found that although a hostile relationship exists between the president and a small group of residents including the complainant, the respondent did not violate the provisions of the FOI Act merely by conducting its November 16 monthly meeting at a private residence.

 

            12.  It is accordingly concluded that with respect to the allegation described in paragraph 2a., above, the respondent is not in violation of the provisions of §1-21(a), G.S., under the facts of this case.

 

            13.  With respect to the allegation described in paragraph 2b., above, it is found that the complainant has failed to allege a violation of the FOI Act.

 

            14.  With respect to the allegation described in paragraph 2c., above, it is found that at the time the complaint was brought, the respondent did not maintain a “regular office or place of business” where its public records could be inspected, nor was there available “an office of the clerk of the political subdivision in which such public agency is located,” within the meaning of §1-19(a), G.S.

 

15.  Section 1-19(a), G.S., provides in relevant part that “every person shall have the right to inspect such [public] records promptly during regular office or business hours or to receive a copy in accordance with the provisions of section 1-15.” [Emphasis added].

 

16.  Section 1-19(a), G.S., in relevant part further provides that:

 

Each such [public] 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 office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located….[Emphasis added].

 

17.  It is found that the Candlewood Island Tax District (“district’) is a political subdivision and the respondent is located within that political subdivision.

 

18.  It is found that some of the district’s records are kept at a community center, which is closed during the winter, some at the district’s bookkeeper’s home, and some at the tax district clerk’s (“clerk”) home.

 

19.  It is found that the clerk does not maintain an office which is accessible to the public and where the public can inspect records promptly during regular office or business hours, within the meaning of §1-19(a), G.S.

20.  It is found that the respondent transported records to the New Fairfield town hall, at which location the complainant was told he could view the requested records.

 

21.  It is concluded that the respondent violated §1-19(a), G.S., by failing to maintain public records in its custody at either a regular office or place of business in an accessible place, or to maintain such records in an accessible office of the clerk of the respondent.

 

            22.  With respect to the allegations described in paragraph 2d., above, it is found that by letter dated October 20, 1995, the complainant requested that the clerk provide him with access to inspect and copy eleven categories of records (“requested records #1-11”). 

 

            23.  It is found that as a result of the complainant’s October 20, 1995 request identified in paragraph 22, above, the clerk provided the complainant with access to inspect and copy the requested record items 1-3 and 5-11 on November 10, 1995, a date of mutual convenience for the parties.

 

            24.  It is found that at the time of the request in this matter, the respondent did not maintain records responsive to requested record 4, but that such records were thereafter provided to the complainant on December 29, 1995.

 

            25.  It is also found that at the time of the request in this matter, the respondent had destroyed some of the requested meeting tapes responsive to requested record 10 (“meeting tapes”), but that the complainant was provided with those records that were still available.

 

            26.  It is found that the clerk’s practice was to erase meeting tapes after preparing the respondent’s meeting minutes.

 

            27.  It is found that the laws pertaining to retention and destruction of public records is a matter over which the state’s Public Records Administrator has jurisdiction and is not within the jurisdiction of the FOI Commission.

 

            28.  Accordingly, it is concluded that the Commission lacks jurisdiction over the issue of the retention and destruction of the subject tape recordings.

 

29.  It is also concluded that the requested record items provided to the complainant, and as described in paragraph 23, above, are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

            30.  It is concluded that under the facts of this case, the respondent did not violate the provisions of the FOI Act pursuant to the allegation identified in paragraph 2d., above.

 

            31.  With respect to the allegations made in paragraph 3, above, it is found that the complainant has failed to allege a violation of the FOI Act.

 

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

 

1.  Within forty-five days of the date of the mailing of the notice of the final decision in this case, the respondent shall establish an office or place of business of the respondent or establish an office of the clerk of the Candlewood Isle Tax District and shall establish reasonable office hours to be held at least once a week on one or more occasions between the hours of 8 a.m. or 5 p.m. for a total of at least four hours each week.

 

            2.  Within forty-five days of the date of the mailing of the notice of the final decision in this case, the respondent shall notify this Commission and the complainant of the address of the office or place of business established in accordance with paragraph 1 of the order, above, and of the hours it shall remain open.

 

3.     Those portions of the complaint concerning the violations alleged in paragraphs 2a., 2b. and 2d. of the findings, above, and paragraph 3 of the findings, above, are hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 1996.

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission


 

 

 

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:

 

Daniel O’Connor

7 Peter Cooper Road

New York, NY 10010

 

 

Board of Directors, Candlewood Isle Tax District

c/o  Francis J. Collins, Esq.

148 Deer Hill Avenue

P.O.  Box 440

Danbury, CT 06810

 

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

 

FIC 1995-420/FD/eal/112296