FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as contested case on December 6, 2006 and June 8, 2007, at which times the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. By letter and petition dated February 26, 2007, the respondent requested a declaratory ruling that the Morningside Association (the “Association”) was not a public agency. On March 14, 2007, the Freedom of Information Commission (“Commission” or sometimes “FOIC”) voted to deny the request for an advisory opinion. 

           

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

 

1.  It is found that, by letter dated August 21, 2006, the complainant made a request to the respondent for copies of five categories of records (these records together being the “requested records”).  

 

2.  By letter dated September 7, 2006, and filed with the Commission on September 11, 2006, the complainant appealed to the Commission, alleging that the respondent’s failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainant also alleged that the records of the Association were maintained at the personal residence of the respondent, and not in any office or “record keeping repository within the City of Milford”.

 

3.  Section 1-200(1), G.S., states in relevant part:

 

 “Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official…. (emphasis added)

 

4.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212…. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. (emphasis added)  

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

5.  It is found that the respondent provided the requested records to the complainant on or about the date of the first hearing in this matter (December 6, 2006).

 

6.  It is found that the General Assembly formed the Association by Special Act in 1921, in order “to provide for the care and improvement of the lands in said district”. The Association was given the power to levy taxes on the real estate within its specific territory and to foreclose on such real estate, as well as the power to acquire land by eminent domain. The Association has approximately 100 acres within its jurisdiction, and itself owns seven or eight parcels that together comprise between two and three acres.   

 

7.  It is found that an executive board of five members governs the Association. The members serve staggered terms based upon an annual election in which all of the 205 homeowners may vote. The executive board elects its own officers and also appoints a nominating committee annually. The executive board meets once per month on a year around basis, and sometimes meets as often as three or four times per month, including some meetings by teleconference.   

 

8.  It is found that the Association’s current mill rate is .0172, resulting in a mean annual assessment for an individual home of between $220 and $275. These taxes fund an annual budget of $68,000, which is spent to compensate legal, accounting and part-time administrative staff; to maintain recreational equipment at or near a beach that the Association supervises, based upon a lease from the City of Milford; and finally, to cut lawns.

 

9.  It is found that the Association requires plans for new construction to be submitted for approval, but does not have the power to issue cease and desist orders. The City of Milford, not the Association, maintains all roads, issues building permits, and administers zoning regulations. The Association has the power to appoint police officers and has on occasion hired police in the summertime to patrol the beach and adjoining roads. But in general, the City of Milford provides police and fire protection, and administers the public health laws within the territory of the Association.

 

10.  It is finally found that the Association has not traditionally complied with the FOIA laws; that meetings of the executive board have been held in the private residences of members, usually without any public notice; and that the Association’s records are disbursed in the residences of various members of the executive board.   

 

11.  It is concluded that the Association is a “district or other political subdivision of the state”, as that term is used in §1-200(1)(A), G.S., because the Association is discharging limited functions of self-government, within a prescribed area, as authorized by the General Assembly. See State ex rel Maisano v. Mitchell, 155 Conn. 256 (1967); Dugas v. Beauregard, 155 Conn. 573, 578 (1967); Sachem’s Head Property Owner’s Association v. Guilford, 112 Conn. 515, 517-518 (1931); Herbert Latournes v. Marvin Smith, Tax Collector, Chalker Beach Improvement Association, Inc.; and Chalker Beach Improvement Association, Inc., FIC Docket # 1999-459; Mr. and Mrs. Peter Serafin v. Lord’s Point Asociation, Inc., FIC Docket # 1987-115; In the Matter of a Request for Advisory Opinion, Crescent Beach Association, Advisory Opinion #48; Frank L. Smith v. Mrs. Jeanette DiPinto, President of the Sunset Association; and Sunset Acres Association, FIC Docket # 1979-184; §7-372, G.S.      

 

12.  In his brief, the respondent argues “that only entities that call themselves ‘Beach Associations’ should be treated as” public agencies, and that the Association did not classify itself as a beach association. But the Commission’s decisions have long held that various associations, and not just beach associations, are public agencies. See Martha Lemmon v. East Norwalk Improvement Association, FIC Docket # 2004-286; Eugene M. Stack, Jr. v. Harold White, President Marlborough Association for Senior Housing, Marijean Hune, Robert Sekoll, Patricia Beatty, Ellie Wazer, Esther Coleman, Stephen O’Connell, Petere Shevchencho, James Ameling and Marlborough Association for Senior Housing, FIC Docket # 1993-236; Kenneth W. Simonds v. President, Fall Mt. Lake Property Owners Association; and Fall Mt. Lake Property Owners Association, FIC Docket # 2001-039; William J. Choma, Jr. Princess Pocotopaug Association, FIC Docket # 1992-217. Therefore, it is concluded that the respondent is a public agency within the meaning of §1-200(1)(A), G.S.

  

13.  It is therefore concluded that the respondent violated §1-210(a), G.S., when he failed to promptly provide the complainant with the requested records.

 

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

 

1.  The respondent shall make his best efforts to ensure that the Association complies with all record requirements of the FOIA. Specifically, the respondent shall make his best efforts to consolidate all the records of the Association, and if no regular place of business is established for the Association, all Association records shall be maintained in the town clerk’s office of the City of Milford.   

 

2.  The respondent shall make his best efforts to require the Association to comply with all meeting requirements of the FOIA.  Specifically, the respondent shall make his best efforts to ensure that the meetings of the executive board are held in a place that is suitable for public meetings and able to accommodate all members of the public who are likely to attend.

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of July 25, 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:

 

John Holthaus

c/o Robert H. Boynton, Esq.

41 Cherry Street

Milford, CT 06460

 

Clerk, Morningside Association

c/o Max S. Case, Esq.

Jacobi & Case P.C.

300 Bic Drive

Milford, CT 06460

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-461FD/paj/7/26/2007