FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

         

The above-captioned matter was heard as a contested case on August 15, 2005, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed May 19, 2005, the complainant appealed to the Commission, asking to renew her complaints in Docket ##FIC 2004-188 and 2004-189, and alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       Not complying with the terms of a mediated settlement in Docket #FIC 2004-188 and 189;

b.      Leaving a “rapid-fire style” voicemail on the morning of March 3, 2005 concerning the agenda for the regular meeting of that date;

c.       Leaving a similar voicemail message on April 6, 2005 that the meeting for that afternoon would be cancelled;

d.      Providing no notice for a May 4, 2005 meeting that was cancelled; and

e.       Providing no notice of a May 6, 2005 meeting conducted in executive session.

 

3.  It is found that the complainant filed two complaints on April 19, 2004: Docket #FIC 2004-188, Anita Mielert v. Open Space Committee, Town of Simsbury; and Docket #FIC 2004-189, Anita Mielert v. Thomas Vincent, First Selectman, Town of Simsbury.

 

4.  It is found that both complaints were withdrawn after the parties voluntarily negotiated a settlement, and that no order was issued by the Commission in either case.  The complainant in the settlement of those cases expressed the desire “to reserve the right to re-open this complaint in the event that the terms I have agree[d] to are not fulfilled properly by the respondents.”

 

5.  The terms of the negotiated settlement were that:

 

… Mr. Vincent will apologize to me for his behavior in open session of the Open Space Committee at its next meeting (scheduled for November 3 [2004]), that the apology will be entered into the minutes of the meeting, and that Mr. Vincent will attend, as soon as possible, a course instructing him in the Freedom of information Act and its provisions and subsequent case law, and that I will be notified officially of his having so attended.  If I am not satisfied with the fulfillment of any of these measures, I will be allowed to re-open the case with the FOI Commission for a re-scheduled hearing.

 

6.  Section 1-206(b)(1), G.S., provides in relevant part: “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.”

 

7.  It is concluded that the Commission’s jurisdiction to hear and decide the complaints in Docket ##FIC 2004-188 and 2004-189 expired on April 18, 2005, one year after the filing of each complaint.

 

8.  With respect to the complainant’s request to “renew” or reopen her complaints in Docket ##FIC 2004-188 and 189, it is concluded that the Commission therefore lacks jurisdiction to do so, and the request is necessarily denied.

 

9.  With respect to the allegation described in paragraph 2.a of the findings, above, which is a  request for enforcement of the settlement agreement, it is concluded that the Commission lacks jurisdiction to enforce that agreement between the parties, since any alleged failure to comply with the agreement would not violate any order by the Commission.

 

10.  With respect to the allegations described in paragraph 2.b and 2.c of the findings, above, it is found that these allegations concern the adequacy of voicemail notices of meetings left on the complainant’s answering machine more than thirty days before the filing of this complaint.

 

11.  Section 1-206(b)(1), G.S., provides in relevant part, “[a] notice of appeal shall be filed within thirty days after such denial [of any right conferred by the FOI Act].”

 

12.  It is concluded that the Commission lacks jurisdiction to address the allegations described in paragraphs 2.b and 2.c of the findings, above.

 

13.  With respect to the allegation described in paragraph 2.d of the findings, above, §1-225, G.S., sets forth the notice requirements for meetings of public agencies.

 

14.  It is found that the respondent did not meet on May 4, 2005.

 

15.  It is therefore concluded that the complainant, who alleged that she did not receive a notice or agenda concerning a meeting that was subsequently cancelled, has not alleged a violation of the FOI Act. 

 

16.  With respect to the allegation described in paragraph 2.e of the findings, above, the complainant does not allege any impropriety with respect to the executive session convened at the respondent’s May 6, 2005 meeting.  Rather, the complainant alleges that she was not provided notice of that meeting pursuant to §1-227, G.S.

 

17.  Section 1-227, G.S., provides in relevant part:

 

The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting.   

 

18.  It is found that the complainant filed a written request for notice pursuant to §1-227, G.S.

 

19.  It is found that the May 6, 2005 meeting was a special meeting that was called and noticed on or about May 5, 2005, less than seven days prior to the date set for the meeting.

 

20.  It is found that the respondent gave the complainant notice by telephone of the May 6, 2005 meeting on May 5, 2005, believing that such notice was practical in that case, since mailed notice wouldn’t have been received in time for the meeting.

 

21.  It is concluded that the respondent complied with the express terms of §1-227, G.S.

 

22.  The complainant nonetheless contends that her written request for notice pursuant to §1-227, G.S., was “to be included on all agenda distributions,” and that she did not receive a copy of the agenda for the May 6, 2005 meeting.

 

23.  It is concluded, however, that §1-227 by its terms requires, under these circumstances, only such notice as the agency deems practical, and not delivery of a copy of the printed agenda.

 

 

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

 

            1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 12, 2006.

 

________________________________

Petrea A. Jones

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:

 

Anita A. Mielert

57 East Weatogue Street

Simsbury, CT 06070

  

Open Space Committee,

Town of Simsbury

c/o Robert M. DeCrescenzo, Esq.

Updike, Kelly & Spellacy PC

PO Box 231277

One State Street

Hartford, CT 06123-1277

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-245FD/paj/4/18/2006