FIC2003-001

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Marshall and Laurie Klimasewiski,
		Complainants
	against		Docket #FIC 2003-001
David Wiig, Chairman, Planning and Zoning Commission, Town of Morris; Roger Watts, Steven Paletsky, Chris Pawlowski, Kim Dore, Kevin Chilson, Christine Bochicchio and Richard Grinvalsky, as members, Planning and Zoning Commission, Town of Morris; and Planning and Zoning Commission, Town of Morris,
		Respondents	November 12, 2003

The above-captioned matter was heard as a contested case on June 3, 2003, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket # 2003-062, Marshall Klimasewiski and Laurie Klimasewiski v. David Wiig, Chairman, Planning and Zoning Commission, Town of Morris; Roger Watts, Steven Paletsky, Chris Pawlowski, Kim Dore, Kevin Chilson, Christine Bochicchio and Richard Grinvalsky, as members, Planning and Zoning Commission, Town of Morris; and Planning and Zoning Commission, Town of Morris.

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.

2. By letter dated January 1, 2003, and filed on January 2, 2003, the complainants appealed to this Commission alleging that the respondents had violated the Freedom of Information (“FOI”) Act by:

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a. not permitting the videotaping of the respondent commission’s regular meeting of December 4, 2002 (hereinafter, “meeting”);

b. conducting unspecified meetings via e-mail;

c. discussing a matter that was not noticed on the December 9, 2002 special meeting agenda (notice), and failing to record the discussion in the minutes for that meeting;

d. failing to comply with complainant Laurie Klimasewiski’s written request, dated October 3, 2002, asking for notification of any meetings concerning docks;

e. conducting “workshops;” and

f. secretly conducting a meeting to re-elect officers of the respondent commission.

3. The complainants request the imposition of civil penalties for the alleged violations as described in paragraph 2., of the findings, above, with the exception of the allegation described in subparagraph 2.f., which was withdrawn at the hearing.

4. The complainants have also, subsequent to the initial complaint in this matter, made a number of requests to amend their complaint and raise additional issues and for this Commission to subpoena a number of records, including a year of telephone records and e-mail messages. All such requests are hereby denied as unwarranted and unjustified.

5. Section 1-200(2), G.S., provides in relevant part that:

“Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . . “Meeting” does not include: . . . communication limited to notice of meetings of any public agency or the agendas thereof.

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6. Section 1-225(a), G.S., provides in relevant part:

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. 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.

7. Section 1-225(d), G.S., provides in relevant part that “[t]he notice [of a special meeting] shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.”

8. Section 1-225(e), G.S., provides in relevant part:

[N]o member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or to furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance. [Emphasis added.]

9. Section 1-226(a), G.S., provides:

(a) At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-225, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. Any recording, radio, television or photographic equipment may be so located within the meeting room as to permit the recording, broadcasting either by radio or television, or by both, or the photographing of the proceedings of such public agency. The photographer or broadcaster and its personnel, or the person recording the proceedings, shall be required to handle the photographing, broadcast or recording as inconspicuously as possible and

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in such manner as not to disturb the proceedings of the public agency. As used herein the term television shall

include the transmission of visual and audible signals by cable.

(b) Any such public agency may adopt rules governing such recording, photography or the use of such broadcasting equipment for radio or television stations but, in the absence of the adoption of such rules and regulations by such public agency prior to the meeting, such recording, photography or the use of such radio and television equipment shall be permitted as provided in subsection (a).

10. With respect to the allegation described in paragraph 2a., of the findings, above, it is found that the complainants hired an individual to videotape the meeting.

11. It is also found that the members of the respondent commission attempted to intimidate the individual hired to videotape the meeting by continuously asking him to identify himself and give the reason he was videotaping the meeting.

12. The respondents contend that their inquiry was proper because a member of the public might later ask the respondents for a copy of the videotape and they would need to know the name of the individual videotaping the meeting to comply with such a request.

13. It is found that the respondents’ argument, as set forth in paragraph 12 of the findings above, is both incredible and disingenuous. It is further found that there is no evidence that the individual videotaping the meeting conducted himself in such a way as to disrupt the meeting.

14. It is further found that although the members of the respondent commission eventually voted (4 in favor and 3 against) to permit the videotaping at issue, and the videotaping did occur, the respondents’ attempted intimidation of the person videotaping the meeting as described in paragraph 11., above, was not in keeping with the letter and spirit of the law, and, therefore, constituted a violation of §§1-225(e) and 1-226, G.S. In this regard, but for the strength of character of the individual videotaping the meeting in the face of the respondents’ attempts at intimidation, he, and perhaps others similarly situated, would have been forced to either identify himself or forego videotaping a meeting of the respondent commission, contrary to the provisions of the FOI Act cited herein.

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15. With respect to the allegation described in paragraph 2b., of the findings, above, it is found that on or about December 8 and 9, 2002, various members of the respondent commission exchanged e-mail messages regarding items to be discussed at future meetings. It is concluded that such exchanges do not constitute a “meeting,” within the meaning of §1-200(2), G.S. Indeed, it is also found that members of the respondent commission took precautions to avoid discussing or acting on any matters via e-mail. It is found that the e-mail exchanges constitute communications limited to notice of meetings or the agendas of meetings within the meaning of §1-200(2), G.S. Therefore, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 2b., above.

16. With respect to the allegation described in paragraph 2c., of the findings, above, it is found that the agenda (notice) of the respondent commission’s December 9, 2002 special meeting listed a number of items, none of which specifically relates to docks and boats, although those subjects were, in fact, discussed at that meeting.

17. It is further found that the minutes of the December 9, 2002 special meeting do not reflect the subject of boats and docks, as discussed at that meeting.

18. It is therefore concluded that the respondents violated §§1-225(a) and 1-225(d), G.S., by failing to specify the business to be transacted at the December 9, 2002 special meeting, by then discussing same at the special meeting, and by failing to include such discussion in the minutes of that meeting.

19. With respect to the allegation described in paragraph 2d. of the findings, above, it is found that complainant Laurie Klimasewiski made a written request, dated October 3, 2002, to the zoning enforcement officer of the Town of Morris, stating in part that she “would also like to be notified of any meetings pertaining to docks or discussion of docks on Bantam Lake.”

20. Although §1-227, G.S., requires that a public agency “give notice by mail of each regular meeting and any special meeting . . . to any person who has filed a written request for such notice,” it is found that such requirement does not extend to providing notice of specific issues to be discussed or acted upon at any such meeting. To read such a requirement into the law would be to create a virtually impossible task in many circumstances, and this Commission declines to do so. Consequently, it is concluded that the respondents did not violate the provisions of §1-227, G.S., by failing to provide complainant Laurie Klimasewiski with notice of meetings of the respondent commission which were held to discuss, or which pertained to, docks.

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21. With respect to the allegation described in paragraph 2e., of the findings, above, it is found that the agenda (notice) of the respondent commission’s December 9, 2002 special meeting listed as item 3 “WORKSHOP MEETING.” It is also found that nothing in the agenda further identifies what that item relates to.

22. Although there is nothing in and of itself illegal about calling a portion of a public meeting a “workshop,” it is found that the notice of special meetings provisions of §1-225(d), G.S., require at a minimum that such notice fairly apprise the public of the business to be transacted at a special meeting.

23. In the case of the respondent commission’s December 9, 2002 special meeting, the agenda item entitled “WORKSHOP MEETING” failed to fairly apprise the public of the business to be transacted. Consequently, it is concluded that the respondents violated §1-225(d), G.S., with regard to conducting a workshop meeting as part of its December 9, 2002 special meeting.

The Commission declines to consider the imposition of civil penalties in this matter.

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

1. Henceforth, the respondents shall strictly comply with the provisions of §§1-225(a), (d) and (e) and 1-226, G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 2003.

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

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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:

Marshall and Laurie Klimasewiski

c/o Ralph S. Keen III, Esq.

406 Farmington Avenue

Farmington, CT 06032

David Wigg, Chairman