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