FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 29, 2006, at which time the complainant and the respondent appeared 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.      It is found that the respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      By letter dated July 27, 2006, and postmarked on July 28, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by

 

a.       conducting its June 29, 2006 regular meeting (“the June 29, 2006 meeting”) with an agenda that failed to indicate that a vote would be taken on a particular matter;

b.      failing to make the votes available for public inspection within 48 hours of such meeting; and,

c.       failing to make the minutes available for public inspection within seven days of such meeting.

 

3.  It is found that the respondent held a regular meeting on June 29, 2006.  It is also found that the agenda for such meeting read, in relevant part:

 

I.                    Approval of minutes of May 25, 2006

II.                 Fabacher property review

III.               Discussion of the new Demolition Ordinance

 

4.  The complainant contends that item II of the agenda should have indicated that the respondent intended to vote on whether the work done on the Fabacher property was in compliance with a “certificate of appropriateness” that had been issued for the property.

 

5.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

6.  It is found that issues concerning the Fabacher property were pending before the respondent for approximately two years prior to the June 29, 2006 meeting.  It is further found that references to the Fabacher property had been on the respondent’s agenda for meetings during the preceding months, “for many months, if not years”, according to the acting chairperson of the respondent.

 

7.  It is found that, at the June 29, 2006 meeting, the building official for the Town of New Canaan appeared before the respondent and reported his findings regarding whether or not the work done on the Fabacher property was in compliance with the certificate of appropriateness.  It is found further that, if the vote were favorable, the respondent would have finally concluded its review of the Fabacher property. 

 

8.  It is found that at the June 29, 2006 meeting, the respondent discussed and voted on the issue identified in paragraph 7, above.

 

9.  It is found that, based upon the facts and circumstances of this case, the agenda did not fairly and sufficiently apprise the public that the respondent would be voting on, and, potentially, concluding, its review of the Fabacher property.

  

10.  It is therefore concluded that the respondent violated the FOI Act as alleged by the complainant in paragraph 2.a, above.

 

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

 

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 with 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.

 

            12.  It is found that the minutes of the June 29, 2006 meeting were filed on July 17, 2006, and that such minutes reflect the votes of the respondent members.  However, it is found further that, due to staff shortages and vacations, such votes were not reduced to writing and made available for public inspection within 48 hours, nor were the minutes available for public inspection within 7 days of such meeting.

 

13.  It is therefore concluded that the respondent violated §1-225(a), G.S., as alleged by the complainant in paragraphs 2.b and 2.c, above.

 

14.  At the hearing in this matter, the complainant also alleged that the respondent violated the FOI Act when it failed to file “approved” minutes of the June 29, 2006 meeting.

 

            15.  However, the FOI Act contains no requirement that “approved” minutes be filed, and it is therefore concluded that the respondent’s failure to file “approved” minutes did not violate the FOI Act.

 

16.  Although it is found that there was no bad faith on the part of the respondent in failing to make the votes and minutes available to the public in a timely fashion, the Commission strongly suggests that the respondent create a more effective and standardized procedure for ensuring future compliance with the FOI Act in this regard.

 

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

 

1.      Henceforth, the respondent shall draft its agendas so that they fairly and sufficiently apprise the public of the action proposed.

 

2.      Henceforth, the respondent shall strictly comply with the requirements contained in §1-225(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 28, 2007.

 

________________________________

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:

 

Mary E. Findlay

c/o Robert M. DeCrescenzo, Esq.

One State Street, Suite 2400

PO Box 231277

Hartford, CT 06123-1277

 

Historic District Commission,

Town of New Canaan

c/o Christopher J. Jarboe, Esq.

PO Box 390

65 East Avenue

Norwalk, CT 06852-0390

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-338FD/paj/3/7/2007