FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 19, 2006, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with docket #FIC 2005-602, Frank A. Loda v. Robert J. Koskelowski, First Selectman, Town of Seymour; docket #FIC 2006-032, Frank A. Loda v. Board of Selectmen, Town of Seymour; and docket #FIC 2006-033, Frank A. Loda v. Robert J. Koskelowski, First Selectman, Town of Seymour; and George Temple, Town Counsel, Town of Seymour.

           

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  It is found that the respondent selectmen and the respondent board are public agencies within the meaning of §1-200(1), G.S.  It is found that the respondent town counsel is not a public agency within the meaning of §1-200(1), G.S.  It is further found that the respondent town counsel is not a member of the respondent board, but acts in the capacity as counsel, and therefore the allegations addressed herein are not properly brought against such counsel.  Accordingly, all references hereinafter to respondents do not include the town counsel. 

 

2.  By letter of complaint, dated December 27, 2005, and filed on December 29, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       preventing the complainant from videotaping the December 21, 2005 meeting from the location he used for the past year and insisting that the complainant move his camera and tripod to the back of the room;

b.      taking the action described in paragraph 2a, above, without such topic being on the meeting agenda;

c.       adopting the following rules: i) that all video cameras be set up in the back of the room; ii) that if a citizen speaking during the “public comment” portion of a meeting did not wish to be videotaped, then the tape recorder would have to be turned off; and iii) that a video tape made of a public meeting has to be a complete tape of such meeting, and if to be aired on Public Access television, must be aired in its entirety and not edited;

d.      implementing a policy during the December 21, 2005 meeting which limits public comment to three minutes per individual;

e.       criticizing a member of the respondent board for having made available to a reporter a copy of a document included in the respondents’ meeting packets.

 

The complainant requested, among others, the following remedies: that the rules described in paragraph 2c, above, be declared null and void; that a civil penalty be imposed upon the respondents; and that the respondents be required to undergo FOI training.

 

3.  By letter dated January 18, 2006 and filed on January 23, 2006, the complainant supplemented his complaint, described in paragraph 2, above, and further alleged that the respondents violated the FOI Act in connection with certain “motions [recorded] in the minutes of the Board of Selectmen’s 12/21/2005 meeting [which motions] do not properly reflect the language of the motions made by the selectman and appear to have been deliberately changed to reflect the position of the 1^st Selectman and Town Counsel”.  Specifically, the complainant alleged the following:

 

a.       the motion to move the cameras to the back of the room was declared withdrawn by the respondent first selectmen even though the motion to withdraw was never voted on by the respondent board;

b.      the minutes improperly reflect the following language: “so they will be inconspicuous and not disruptive to the meetings per State Statute FOI Sec. 1-226”;

c.       the minutes improperly reflect the following language: “and the photographer may comply with their decision” when what was stated at the meeting was “are not to be taped”;

d.      the minutes improperly reflect the following language: “and there may be a disclaimer if the tape is edited in any way notifying the viewers that the meetings was not shown in its entirety and was edited” (sic);

 

4.  In the January 18, 2006 letter described in paragraph 3, above, the complainant requested that “all motions approved at the 12/27/2005 meeting[1], regarding video taping of Board of Selectmen’s meetings, be declared ‘null and void’ because the agenda item was vague, incomplete and never disclosed that ‘video taping’ was to be the sole subject of item 1 on the agenda, entitled ‘Adopt rules for Board of Selectmen meetings’.”

 

  5.  In the January 18, 2006 letter described in paragraph 3, above, the complainant further alleged that the respondents violated the FOI Act because,  “on 1/3/06 the Selectmen adopted another set of rules, without rescinding the first conflicting set.”

 

6.  With respect to the allegations described in paragraphs 2ciii[2], 2d, 2e, 3a, and 5, above, it is concluded that the complainant has not alleged any conduct that would constitute a violation of the FOI Act.

 

7.  With respect to the allegation described in paragraph 2b, above, it is found that the respondent board held a regular meeting on December 21, 2005 (hereinafter  “meeting” and sometimes “December 21, 2005 meeting”) during which the respondents discussed and voted to adopt certain rules regarding tape recording, photographing and video taping of the respondent board’s meetings.    

 

8.  It is found that the agenda for the meeting reads in relevant part:

 

“1) Adopt rules for Board of Selectmen meetings”

 

9.  Section 1-225(c), G.S., provides, in relevant part that:

 

The agenda of the regular meetings of every public agency . . . shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer….

 

10.  It is found that by addressing the topic of rules applicable to the recording, photographing and video taping of the respondent board’s meetings, at the meeting in question, the respondent did not violate the notice and agenda provision of §1-225(c), G.S., because such topic falls within the agenda item as described in paragraph 8, above.

 

11.  With respect to the allegations described in paragraph 2a, and 2c, above, §1-226, 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 by 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 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 and 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).

 

12.  While §1-226, G.S., permits the respondent board to implement rules regarding the tape recording of its meetings, such provision also grants the public a right to tape record public meetings.  Section 1-226, G.S., inherently contemplates that both the agency and the public must act “reasonably” so that both parties’ rights may be exercised harmoniously.  

 

13.  It is found that the respondents failed to provide credible evidence, and therefore failed to prove, that they acted reasonably when they prevented the complainant from videotaping the December 21, 2005 meeting from the location he used “for the past year.”

 

14.  The credible evidence in the record supports a finding that the respondents are unreasonably targeting the complainant and subjecting him to arbitrary, and even discriminatory, treatment with respect to the videotaping of the respondents meetings.

 

15.  It is therefore concluded that the respondents violated §1-226, G.S., by: (a) preventing the complainant from videotaping from the location he used in the past; (b) requiring that all video cameras be set up in the back of the room, (c) restricting the complainant from videotaping the entire meeting, including those individuals who provide comment during the “public comment” portion of the meeting; and (d) requiring that the complainant tape an entire meeting and not just a portion of a meeting. 

 

16.  With respect to the allegations described in paragraph 3b, 3c, and 3d, above, §1-210(a), G.S., provides, in relevant part that: “[E]ach … [public] agency shall make, keep and maintain a record of the proceedings of its meetings.

 

17.  In addition, this Commission has stated that minutes should accurately reflect the business that transpired at a public meeting.

 

18.  It is found that the respondents failed to prove that the minutes of the December 21, 2005 meeting accurately reflect the motions that were addressed at such meeting.     

 

19.  Consequently, it is concluded that the respondents violated §1-210(a), G.S., by failing to maintain minutes of the December 21, 2005 meeting that accurately reflect the motions in question. 

 

20.  Regarding the issue raised by the complainant that the respondents’ use of the term “other business” on a meeting agenda violates the FOI Act as such term does not sufficiently identify the business to be transacted, it is found that there is no evidence in the record that the respondents violated the FOI Act by using such term on any agenda at issue in this complaint.

 

21.  With respect to the complainant’s request for a civil penalty, §1-206(b)(2), G.S., in relevant part, provides:

 

upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars....

 

22.  It is found that the violation described in paragraph 15, above, was without reasonable grounds.

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

1.  Forthwith, the individually named respondents shall collectively remit a civil penalty in the amount of $500.00 to this Commission.

2.  The respondent board’s policy regarding videotaping of public meetings adopted at the December 21, 2005 meeting is declared null and void.

3.  The respondent board shall forthwith implement a policy that is in keeping with the requirements of §1-226, G.S.

4.  The complaint is dismissed with respect to the respondent town counsel.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 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:

 

Frank A. Loda

27 Osprey Drive

Seymour, CT 06483

 

Robert J. Koskelowski, First Selectman,

Town of Seymour; George Temple, Town Counsel,

Town of Seymour; Patrick Lombardi,

Deputy First Selectman, Town of Seymour;

John D. Conroy, Jr., Selectman, Town of Seymour;

John Putorti, Selectman, Town of Seymour; and

Board of Selectmen, Town of Seymour

c/o George Temple, Esq.

241 Coram Avenue

Shelton, CT 06484

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-617FD/paj/12/19/2006