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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Harvey F. Bellin, |
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Complainants |
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against
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Docket #FIC 1999-326 |
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Hank Bielawa, First Selectman, Town of |
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Respondents |
March
8, 2000 |
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The above-captioned matter was heard as a contested
case on October 5, 1999, 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 §1-200(1),
G.S. [§1-18a(1),
G.S.].
2. By letter dated June 25, 1999, the complainant requested that the respondents provide him with copies of "any and all documents regarding the circumstances surrounding changes to the Town of Redding's original permits for the Meadow Ridge construction site [hereinafter 'the project']." The complainant specifically requested:
“(A) transcripts and/or minutes of any and all meetings of the respondent commission or any other agency of the Town of Redding, including the June 9, 1999 Zoning Commission meeting, in which modifications, additions, deletions and/or any other changes were made to the original provisions of §9 of the Redding Zoning Commission’s “Conditions of Approval” for Meadow Ridge which, explicitly mandates the applicant’s implementing the stipulations in the document titled: “Response to Public Comments of Redding Planning & Zoning Meeting Dated 7/24/96”, and/or changes to any and all other initial conditions for granting permits for Meadow Ridge. Said transcripts should include names of persons present and their official titles, where applicable.
(B) Notice provided for any and all such meetings, including notice given to all Commission members, notice given to the Redding Conservation Commission in matters related to their jurisdiction, public notice and/or requests for public comments, notice given to property owners adjacent to the Meadow Ridge construction or who might be adversely affected by changes in protections provided in original provisions of §9 and other sections of the Redding Zoning Commission’s Conditions of Approval for Meadow Ridge, notice given to applicable commissions and or delegated representatives of the Town of Weston whose jurisdiction includes issues which can be affected by changes in the terms of Redding Zoning Commission’s Conditions of Approval for Meadow Ridge, notice given to any and all applicable local, regional, state and Federal agencies (including, but not limited to the Army Corp of Engineers, and the Westport/Westport Health District) that might have jurisdiction related to the changes in the terms of the Redding Zoning Commission’s Conditions of Approval for Meadow Ridge.
(C) Documents pertaining to the failure of the Redding Zoning Commission to comply with §7 of the “Response to Public Comments of Redding Planning & Zoning Meeting Dated 7/24/96”, which requires the Commission to hire a “Clerk of the Works” (at no expense to taxpayers), and which was not implemented until 1999.
(D) Redding Ethics Commission provisions that prohibit any person with regulatory authority in such matters and/or elected and/or appointed officials of the Town of Redding and their respective relatives, heirs, beneficiaries and assigns from receiving current or future compensation or promises of compensation in the form of money, employment, stocks, properties, residential units, privileges and/or any other good and valuable consideration from the interested party, i.e. Redding Care Services, LLC, or from its owners, employees, parent organization, contractors, subcontractors, stockholders, licensees, assigns or any other third party with an interest in business and other activities conducted by or on behalf of Redding Lifecare, LLC or its owners, employees, parent organization, contractors, subcontractors, stockholders, licensees or assigns.
The complainant informed the respondents that failure to comply with his request within four business days would result in the filing of a complaint with this Commission.
3. Further, it is found that, in a document entitled “Request for Public Hearings and to Cease and Desist Implementation of June 9, 1999 Zoning Commission Action to Rescind Portion of Previously Granted Site Plan Modification Involving Placement of (Sewage) Treatment Facility for Redding Lifecare, LLC.,” the complainant joined with eight other signatories requesting that the respondent commission conduct public hearings at which it would provide justification for its actions taken at a June 9, 1999, meeting, and present numerous records, many of which are duplicative of the records requested in paragraph 2, above.
4. By letter dated July 9, 1999, and filed July 12, 1999, the complainant alleged that the respondents violated the Freedom of Information (hereinafter "FOI") Act, by failing to respond to the requests described in paragraphs 2 and 3, above. The complainant requested that civil penalties be imposed.
5.
Section 1-210(a), G.S. [formerly §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 1-212…
6.
Section 1-212(a), G.S. [formerly §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. The fee for any copy provided in accordance with the [FOI] Act…[b]y all [municipal]…agencies…shall not exceed fifty cents per page...
7. It is concluded that nothing in the FOI Act requires public agencies to hold public hearings at which records must be presented in response to a request from a member(s) of the public. Accordingly, the Commission lacks jurisdiction over, and will not address, that portion of the complaint concerning paragraph 3, above.
8.
It is found that, to the extent records responsive to the complainant’s
request exist, such records are public records within the meaning of §1-210(a),
G.S. [formerly §1-19(a),
G.S.].
9. It is found that, at its meeting of June 9, 1999, the respondent commission took action to rescind a portion of a previously granted site plan modification involving the project which is the subject of the request described in paragraph 2, above.
10.
It is found that the request described in paragraph 2, above, was
received by certified mail on June 29, 1999, but was signed for by the local
postal carrier on such date, and that the respondents did not receive actual
notice of such request until sometime thereafter.
It is further found that, by letter dated July 9, 1999, the respondent
zoning officer provided the complainant with a copy of the minutes of the
respondent commission’s June 9, 1999, meeting and copies of the ethics
statements of the Redding Zoning Commissioners, at no cost.
By such letter, the respondent zoning officer informed the complainant
that such records “reflect[ed] all documents identified in relation
to your request dated June 25, 1999.” [Emphasis
added].
11.
It is found that the request described in paragraph 2, above, is
complicated, and includes requests for records not readily identifiable.
Specifically, it is found that the request described in paragraph 2c,
above, and a portion of the request described in paragraph 2b, above, would
require the respondents to make a subjective determination with respect to a
possible failure to comply with law, as well as a determination of the
jurisdiction of other agencies.
12.
It is concluded that the FOI Act does not require public agencies to
make subjective determinations in identifying records requested.
William E. Wildin v. Freedom of Information Commission, et al.,
No. CV97-0572290, Sup. Ct., Judicial District of Hartford/New Britain at
Hartford (DiPentima, J.) (June 17, 1998).
Accordingly, it is further concluded that the respondents did not
violate §1-212(a),
G.S. [formerly §1-15(a),
G.S.] by failing to provide the complainant with copies of records responsive
to the complainant’s request in paragraph 2c, and a portion of paragraph 2d,
as described in paragraph 11, above.
13.
It is found that the request described in paragraph 2d, above, and
portions of the request described in paragraph 2a, above, include requests for
records maintained or kept on file by agencies other than the respondents.
Accordingly, it concluded that the respondents did not violate §1-212(a),
G.S. [formerly §1-15(a),
G.S.] by failing to provide the complainant with copies of any such records.
14. It is found that the respondent zoning officer acted in good faith and believed that the response provided, as described in paragraph 10, above, included all identifiable requested documents. Nevertheless, it is concluded that such response was not in compliance with §1-212(a), G.S. [formerly §1-15(a), G.S.], because other readily identifiable records could have been provided to the complainant at the time of such response.
15. It is found that an offer to provide the complainant with access to or copies of all notices and minutes of the respondent commission since the inception of the project that is the subject of the request, as well as to the project file, would fulfill the repondents’ obligations under the FOI Act with respect to the complicated request described in paragraph 2, above. It is further found that such offer was made at the hearing in this matter.
On the basis of the record concerning the above-captioned complaint, no order is recommended by the Commission.
Approved by Order of the Freedom of
Information Commission at its regular meeting of
March 8, 2000.
_________________________
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:
Harvey F. Bellin
Seven Maple
Street
Weston, CT
06883-1026
Hank Bielawa, First Selectman, Town of
Redding; Aimee Pardee, Zoning Enforcement
Officer, Town of Redding; and Zoning
Commission, Town of Redding
c/o Atty. Michael N. LaVelle
850 Main Street
PO Box 7006
Bridgeport, CT 06601-7006
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-326FD/mrb/03/09/00