FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

On June 2, 2003, the respondents filed a motion to dismiss the above-captioned matter pursuant to §1-206(b)(4), G.S.  Section 1-206(b)(4), G.S., provides:

 

      Notwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act, or (B) the agency has committed a technical violation of the Freedom of Information Act that constitutes a harmless error that does not infringe the appellant’s rights under said act.

 

As of the date of the filing of the respondent’s motion, the matter had been previously scheduled to be heard as a contested case on June 5, 2003, and, in the absence of a request for a postponement, the hearing was not postponed, in order to give the complainant an opportunity to be heard in opposition to the respondent’s motion to dismiss.  However, the complainant failed to appear at the June 5, 2003 hearing.

 

            The Commission takes administrative notice of its own records and files to observe that it has received communications from the complainant in another of his complaints, Docket #FIC 2002-175, with a return address of Bridgeport Correctional Facility, Bridgeport, Connecticut.  However, the address contained in the complaint in the above-captioned matter is P.O. Box 1385, Fairfield, Connecticut, and the Commission has received no notification of a change of that address with respect to the above-captioned matter.  Section 1-21j-28, Regulations of Connecticut State Agencies, provides in relevant part: “All complaints shall be in writing and shall include the following components: (a)  The complainant’s name, address, and telephone and fax numbers, if any….”  The Commission cannot undertake to ascertain the current actual address of any complainant, and relies in all cases, as in this one, on the address contained in the filed complaint, together with the change of address, if any, filed by the complainant with respect to his case. 

           

            After consideration of the entire record, and construing all allegations most favorably to the complainant, the following facts are found and conclusions of law are reached:

 

            1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter received and filed January 16, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act at its December 11, 2002 meeting in the following respects:

 

      a.   the respondent’s Chairman called only for votes in favor of the hearing officer’s report in docket #FIC 2002-175, Ethan Book, Jr. v. Connecticut Resources Recovery Authority, did not count the votes, and had no reasonable basis for declaring the vote to be unanimous, although the minutes indicate that the Commission unanimously adopted the report;

 

      b.   according to a Commission staff member, there is no record of vote on the adoption of the hearing officer’s report in FIC 2002-175;

 

c.   there is no indication of the Commission’s vote on the complainant’s motion to present additional evidence;

 

d.   the respondent Chairman sought a motion to deny the complainant’s request for leave to present additional evidence, contrary to the rules of parliamentary procedure;

 

e.   Commissioner Norma Reiss participated in the meeting by speaker phone, depriving Commissioner Reiss of a full appreciation of the meeting;

 

f.    there is a potential conflict of interest by the Commission because it is an executive branch agency attempting to exercise jurisdiction over the Connecticut Resources Recovery Authority, another executive branch agency.

 

3.  It is found that the respondent held a meeting on December 11, 2002, which the complainant attended

 

4.  It is concluded that the allegations described paragraphs 2a, above, do not state violations of the FOI Act.  The Commission takes administrative notice of the fact that the presiding officer of a five-member commission need not “count” the votes in order to observe that a voice vote is unanimous.

 

5.  With respect to the allegation contained in paragraph 2b, above, §1-225(a), G.S., provides in relevant part:

 

The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.

 

6.  The Commission takes administrative notice of its own records and files, and finds that the Commission made minutes of its December 11, 2002 meeting, and subsequently amended those minutes, which amended minutes were adopted by the Commission on February 26, 2003.  The Commission also takes administrative notice of its records and files to find that the date of creation of the original minutes of the December 11, 2002 meeting is indicated on the document itself as December 12, 2002, less than 48 hours after the meeting.

 

7.  It is found that both the original and amended minutes of the December  11, 2002 meeting report all the commissioners in attendance at that meeting, and that the commissioners present voted unanimously to approve the hearing officer’s report in Docket number FIC 2002-175.

 

8.  It is concluded that a record that identifies all voting members present and that the vote was unanimous satisfies the “record of vote” requirement of §1-225(a).  See, e.g., Docket #FIC 1996-231, John DeLutio against East Ridge School Building Committee, Town of Ridgefield.

 

9.  It is therefore found that, contrary to the complainant’s allegation in paragraph 2.b, above, and regardless of what may or may not have been communicated to him by a staff member, a record of the commission’s vote on the adoption of the hearing officer’s report in FIC 2002-175 was available for public inspection within 48 hours of the December 11, 2002 meeting.

 

10.  It is therefore concluded that the respondent did not violate the FOI Act with respect to the allegations contained in paragraph 2b, above.

 

11.  With respect to the allegations contained in paragraph 2c, above, it is found that the Commission voted to deny the complainant’s motion to present additional evidence at the December 11, 2002 meeting.

 

12.  It is found that the Commission’s original minutes of its December 11, 2002 meeting did not report this vote.

 

13.  However, it is also found that the Commission’s amended minutes do report this vote. 

 

14. It is found that the complainant alleged no harm that arose from the temporary failure of the Commission’s minutes to reflect the vote on his motion to present additional evidence, during which vote the complainant was present. 

 

15.  It is concluded that, with respect to the allegation described in paragraph 2c, above, the respondent committed a technical violation of the FOI Act that constitutes a harmless error that does not infringe the complainant’s rights under the Act, within the meaning of §1-206(b)(4), G.S.

 

16.  It is concluded that the allegation described paragraph 2d, above, does not state a violation of the Freedom of Information (“FOI”) Act

 

17.  It is concluded that the allegation described paragraph 2e, above, does not state a violation of the Freedom of Information (“FOI”) Act. 

 

18.  It is concluded that the allegation described paragraph 2f, above, does not state a violation of the Freedom of Information (“FOI”) Act

 

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

 

            1.  The motion to dismiss is granted.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

July 23, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Ethan Book, Jr.

PO Box 1385

Fairfield, CT  06825

 

Chairman, State of Connecticut,

Freedom of Information Commission; and

State of Connecticut, Freedom of

Information Commission

c/o Mary E. Schwind, Esq.

Freedom of Information Commission

18-20 Trinity Street

Hartford, CT  06106

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-023FD/abg/07/28/2003