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.  The case caption was amended to reflect the individual members of the respondent against whom a civil penalty was requested, and who all attended the hearing in this matter.  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 #FIC2005-617, Frank A. Loda v. 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; 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 January 18, 2006 and filed on January 23, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act, in connection with a January 3, 2006 meeting, by:

 

a.       preventing the complainant from videotaping the meeting from his “normal” location and requiring that the complainant go to the back of the meeting room;

b.      including on the meeting agenda an item that is vague, incomplete and inadequate;

c.       adopting a confusing and unclear town policy at the meeting regarding the video taping of public meetings by “private parties”, without defining the term “private parties” and “back of the room”;

d.      adopting an intimidating policy that “recommends” that the operator of video equipment turn off such equipment when an individual who speaks at a public meeting requests that such individual not be videotaped;

e.       threatening the complainant’s wife with removal from the meeting room because she questioned why a Connecticut Post cameraman was permitted to stand and take photographs from an area other than the back of the room while the complainant had to remain in the back of the room; and

f.        adopting a new policy on video taping at the meeting without rescinding the prior policy adopted at the December 25, 2005 meeting.

 

In his complaint, the complainant requested that the policy adopted by the respondent board at the January 3, 2006 meeting be declared null and void, and that a civil penalty be imposed upon First Selectman Robert J. Koskelowski, Selectman Patrick Lombardi, Selectman John D. Conroy, Jr., Selectman John Putorti, and town counsel George Temple. 

 

3.  It is found that the respondent board held a regular meeting on January 3, 2006 (hereinafter  “meeting” and sometimes “January 3, 2006 meeting”) during which it discussed and voted to adopt certain rules regarding video taping of the respondent board's meetings.    

 

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

 

“1) Town Policy on Video Taping Public Meetings by Private Parties”

 

5.  With respect to the allegations described in paragraph 2a, 2c, and 2d, 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).

 

6.  While §1-226, G.S., permits the respondent board to implement rules regarding the videotaping of its meetings, such provision also grants the public a right to videotape 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 coexist harmoniously.  

 

7.  It is found that the respondents failed to provide credible evidence, and therefore failed to prove, that they acted reasonably when: a) they adopted a policy requiring all equipment to be set up in the back of the room, and which prevented the complainant from videotaping the January 3, 2006 meeting from the location he used prior to the adoption of the December 21, 2005 video taping policy; b) they adopted a video taping policy exclusively pertaining to "private parties" and which apparently treats such individuals differently from members of the conventional media; c) they recommended that the complainant not videotape individuals who provide comment during the “public comment” portion of the meeting if such individuals do not wish to be videotaped; (d) they required the complainant to tape an entire meeting and not just a portion of a meeting, and (e) they prohibited the complainant from placing necessary microphones at the head table where the members of the respondent are seated. 

 

8.  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 respondent board's meetings.

 

9.  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; (d) requiring that the complainant tape an entire meeting and not just a portion of a meeting, and (e) prohibiting the complainant from placing necessary microphones at the head table where the members of the respondent are seated. 

 

10.  With respect to the allegation described in paragraph 2b, above, §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….

 

11.  It is found that the agenda item regarding the board’s policy on videotaping, described in paragraph 4, above, fairly apprised the public of the business to be addressed by the respondent at the meeting.

 

12.  It is therefore concluded that the respondent board did not violate §1-225(c), G.S., by noticing the agenda item, concerning the videotaping policy, in the manner it did.

 

13.  With respect to the allegations described in paragraph 2e and 2f, above, it is concluded that the complainant has not alleged any conduct that would constitute a violation of the FOI Act.

 

14.  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....

15.  It is found that the violation described in paragraph 9, above, was without reasonable grounds.

16.  It is found that the following members of the respondent board are directly responsible for the violation described in paragraph 9, above, and had an opportunity to be heard at the hearing in this matter: First Selectman Robert J. Koskelowski, Selectman Patrick Lombardi, Selectman John D. Conroy, Jr., and Selectman John Putorti. 

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

1.  The respondent board’s policy regarding videotaping of public meetings adopted at the January 3, 2006 meeting is declared null and void.

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

3.  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

 

Board of Selectmen, Town of Seymour; Robert J.

Koskelowski, First Selectman, 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 George Temple, Town

Counsel, Town of Seymour

c/o George Temple, Esq.

241 Coram Avenue

Shelton, CT 06484

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-032FD/paj/12/19/2006