The above-captioned matter was heard as a contested case on January 26, 1998, 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(1), G.S.

        2. By letter dated November 6, 1998, the complainant made a request to the respondent chairman for the date of the meeting, a copy of the minutes of, and the record of votes, taken at that meeting during which the respondent board authorized the testing procedures for the positions of Fire Chief and Assistant Fire Chief to be administered by the personnel department of the City of Shelton.

        3. By note dated November 12, 1998, the respondent chairman replied to the complainant’s request by stating that the complainant’s company commissioner attended all meetings and by asking where it is required that the board of fire commissioners meet to vote on testing procedures.

        4. By letter dated November 3, 1998 and filed on December 6, 1998, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by virtue of the respondent chairman’s response and failure to provide the requested records.

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

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

        6. Section 1-15(a), G.S., provides in relevant part that ". . . [a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . ."

        7. It is found that the requested records, to the extent that they exist, are public records within the meaning of § § 1-18a(5) and 1-19(a), G.S.

        8. It is found that the complainant initially sought a copy of the records more fully described in paragraph 2, above, at the town clerk’s office which is the office which maintains the respondent board’s meeting minutes.

        9. It is found that the complainant, having not found any minutes which would reflect an action by the board regarding the testing procedures for the positions of Fire Chief and Assistant Fire Chief to be administered by the personnel department of the City of Shelton, and believing that such action did occur, made his request to the respondent chairman.

        10. It is found that the respondent chairman does not maintain nor is he the custodian of the requested records.

        11. It is also found that the respondent board held no meeting during which it discussed or voted to authorized the testing procedures for the positions of Fire Chief and Assistant Fire Chief to be administered by the personnel department of the City of Shelton other than those for which the complainant already had meeting minutes.

        12. It is found that the requested minutes and record of votes as described in paragraph 2, above, do not exist.

        13. Notwithstanding the findings in paragraphs 10 and 12, above, it is found that the respondent chairman’s response to the complainant’s request was highly inappropriate given the over all spirit 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. The complaint is hereby dismissed.

        2. The Commission strongly encourages the respondents to advise those that seek records not in existence, that such is the case so that complaints of this type may be avoided.

        Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 1999.

_________________________

Melanie R. Balfour

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:

Samuel Stern
149 Birdseye Road
Shelton, CT 06484

Chairman, Board of Fire
Commissioners, City of
Shelton; and Board of Fire
Commissioners, City of
Shelton
c/o Atty. Ramon S. Sous
Assistant Corporation Counsel
City of Shelton
159 Main Street
Seymour, CT 06483

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-377FD/mrb03251999