FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

Prior to the scheduling of a hearing in the above-captioned matter, an alternate member of the respondent, Ronald P. Sherlock, moved on March 8, 2007 to dismiss this matter due to lack of subject matter jurisdiction.  On March 16, 2007, the respondent joined in Mr. Sherlock’s motion and moved to dismiss the complaint for lack of subject matter jurisdiction.  On March 16, 2007, Mr. Sherlock filed a supplemental memorandum in support of the motions to dismiss.  On March 21, 2007, the complainant filed an objection to the motions described herein.  This matter was heard as a contested case on July 19, 2007, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the motions to dismiss. 

 

On August 1, 2007, the Hearing Officer issued a report recommending dismissal of the complaint.  At the Commission’s special meeting of September 12, 2007, the Commissioners unanimously voted to remand this matter to the hearing officer to conduct an evidentiary hearing on the complaint.  On October 12, 2007, the respondent filed a motion for articulation of such decision.  At its regular meeting of October 24, 2007, the Commission unanimously denied such motion.  The above-captioned matter was heard as a contested case on November 6, 2007, 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.  It is found that the respondent commission consists of five regular members and three alternate members.  It is also found that three members constitute a quorum. 

 

3.  It is found that, on October 27, 2006, two regular members of the respondent and one alternate member of the respondent, Mr. Sherlock, met with an attorney for the Town of Harwinton to discuss a proposed regulation that had been drafted by Mr. Sherlock.  It is found that no votes were taken during such meeting, which lasted approximately one hour.  It is further found that, after such meeting, Mr. Sherlock made revisions to the draft and that, thereafter, the draft was discussed and revised by the respondent commission at several subsequent public meetings.  As of the time of the November 6, 2007, hearing in this matter, the regulation had yet to be adopted by the respondent commission. 

 

4.  The notice of appeal in this matter (hereinafter “the complaint”) was dated December 15, 2006, postmarked December 16, 2006, and received at the Commission on December 19, 2006.  Pursuant to §1-206(b)(1), G.S., as set forth in paragraph 6, below, the complaint in this matter is deemed to be filed on December 16, 2006.  The complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act by failing to properly notice, and file minutes for, the meeting described in paragraph 3, above.    

 

5.  The respondent first contends that the complaint in this matter was filed more than thirty days after the alleged violation of the FOI Act, and that the Commission therefore lacks jurisdiction in this matter. 

 

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

 

[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken….

 

7.  It is found that, during an open November 13, 2006, regular meeting of the respondent (hereinafter “the November 13, 2006 meeting”), the complainant learned of the October 27, 2006, meeting and questioned the chairman of the respondent as to why no notice of such meeting had been given.  It is found that, during the November 13, 2006 meeting, there was some discussion among the members and staff of the respondent as to whether gatherings such as the October 27, 2006 meeting, or subcommittee meetings, constituted a “meeting” under the Freedom of Information (“FOI”) Act, and it was decided that staff would research the issue and report back to the respondent at the respondent’s meeting of November 27, 2006. 

 

8.  It is found that no clear answers to the issue described in paragraph 7, above, were provided at the November 27, 2006 meeting of the respondent.   

 

9.  It is found that, at some point between December 1, 2006, and December 16, 2006, the date of the filing of the complaint in this matter, the complainant obtained a copy of a December 1, 2006, e-mail from Mr. Sherlock to Peter Brazaitis, the chairman of the respondent, in which the complainant believes Mr. Sherlock conceded that the October 27, 2006 meeting should have been open to the public. 

 

10.  The complainant contends that she had thirty days from December 1, 2006, the date she believes Mr. Sherlock conceded that the October 27, 2006 meeting should have been properly noticed, in which to file the complaint herein. 

 

11.  In essence, the complainant contends that she could not be certain that the October 27, 2006, meeting was a “meeting” for FOI purposes, given that the respondent itself was unable or unwilling to make such determination.  The Commission agrees.   

 

12.  It is found that the October 27, 2006, meeting was unnoticed within the meaning of §1-206(b)(1), G.S.  It is found that the complainant received notice in fact of such meeting when she received a copy of the December 1, 2006, e-mail described in paragraph 9, above.  It is also found that the complaint in this matter was filed within thirty days of such notice in fact.  It is concluded that the Commission has jurisdiction in this matter. 

 

            13.  Section 1-225, G.S. provides in relevant part:

 

(a)  The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  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 within 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.

 

                        …

 

(d)  Notice of each special meeting of every public agency … shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the…clerk of such subdivision for any public agency of a political subdivision of the state …. 

 

14.    Section 1-200(2), G.S., defines “meeting” to mean:

 

…any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power….

 

15.  The respondent contends that the October 27, 2006 meeting was not a “meeting” within the meaning of §1-200(2), G.S., since only two regular members and one alternate member were in attendance.  However, it is found that three members of the respondent commission constitute a quorum.  Moreover, it is found that the three members in attendance at the October 27, 2006, meeting constituted a de facto subcommittee of the respondent commission.  It is further found that the three members in attendance met to discuss or act upon a matter over which the respondent had supervision, control, jurisdiction, or advisory power on October 27, 2006.  It is found that the October 27, 2006, meeting was a “meeting” within the meaning of the FOI Act. 

 

16.  It is found that the respondent did not file notice of its October 27, 2006 meeting within the meaning of §1-225(d), G.S.  Accordingly, it is concluded that the respondent violated the FOI Act in that regard, as alleged in the complaint. 

 

17.  It is found that the respondent did not make available minutes of its October 27, 2006 meeting within the meaning of §1-225(a), G.S.  Accordingly, it is concluded that the respondent violated the FOI Act in that regard, as alleged in the complaint. 

 

 

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

 

1.      Forthwith, the respondent shall make available minutes of its October 27, 2006,

meeting. 

 

2.  Henceforth, the respondent shall strictly comply with the provisions of §1-225, G.S. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

Candace Jones-Pacholski

100 Bull Road

Harwinton, CT 06791

           

Zoning Commission, Town

of Harwinton

c/o Steven E. Byrne, Esq.

790 Farmington Avenue

Suite 2B

Farmington, CT 06032

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-672FD/paj/12/12/2007