In the Matter of a Complaint by FINAL DECISION


Edward R. Bradley,




against Docket #FIC 86-40


Wallingford Town Council of the Town of Wallingford,


Respondent May 14, 1986


The above-captioned matter was scheduled to be heard as a contested case with #FIC 86-39, Ronald M. Gregory vs. Wallingford Town Council, on February 28, 1986, because of the similarity of the subject matter. On February 28, 1986 the complainants appeared and requested a continuance and the matter was continued to April 4, 1986, at which time the parties appeared and presented evidence and argument on the complaint. Thereafter, the matter was continued to April 25, 1986, at which time the parties appeared and presented additional evidence and argument on the complaint.


After consideration of the entire record, the following facts are found:


1. The respondent is a public agency within the meaning of 1-18a(a), G.S.


2. The respondent moved to dismiss the complaint because of the failure of the Freedom of Information Commission to comply with the requirements set forth at 1-21i(b), G.S.


3. Section 1-21i(b), G.S., provides in relevant part:


Said commission shall, within twenty days after receipt of the notice of appeal, hear such appeal after due notice to the parties and shall decide the appeal within thirty days after such hearing.


4. Notice was sent to all parties on February 21, 1986 for the scheduled hearing on February 28, 1986.


5. On February 28, 1986 only the complainants appeared to request a continuance.


6. The continuance was granted and the matter was continued to April 4, 1986, and thereafter to April 25, 1986.


Docket #FIC 86-40 page 2


7. It is found that the hearing was opened on February 28, 1986, and that the requirements of 1-21i(b), G.S., have been satisfied.


8. The complainant alleged the public had been denied access to a meeting of the respondent on February 10, 1986, because the meeting was held at a facility too small to provide seating for those who wished to attend.


9. The meeting was held at the Wallingford public library community room, a facility which accommodates approximately 75 persons.


10. The meeting was scheduled to provide information to the community concerning a controversial trash-to-energy plant planned for the town.


11. The proceedings of the meeting were broadcast on cable television and videotaped for subsequent viewing at the town library.


12. Only 75 percent of the households in Wallingford have access to cable television.


13. Because of the limited capacity of the library facility, many people were turned away, although a few were able to view the proceedings from another room in the library.


14. Sixty people signed a petition, which accompanied the complaint, stating that they were denied access to the meeting of the respondent on February 10, 1986.


15. An alternative site for the meeting with capacity to accomodate several hundred residents was available at Sheehan high school.


16. The chairman of the respondent, David Gessert, was responsible for scheduling the meeting at the library, a decision which he made on the basis of his concern for public safety, because a similar meeting on January 16, 1986 had been unruly.


17. The chairman knew prior to the scheduled meeting that as many as several hundred residents would come to the meeting.


Docket #FIC 86-40 page 3


18. The respondent claimed that the meeting was properly limited because of the need to protect public safety.


19. Provisions relating to the conduct of meetings and to maintaining order are set forth at 1-21h, G.S., and these permit disruptive persons to be removed from a meeting, while certain other provisions also set forth certain limits on what an agency may do when a crowd is disruptive.


20. It is found, therefore, that it is not permissible to limit public access to a public meeting simply because an agency fears disorder.


21. It is concluded that the restrictions on access which limited attendance at the meeting of February, 10, 1986, violated the open meetings requirements of 1-21, G.S.


22. The complainant requests that the Commission consider the imposition of a civil penalty upon the respondent in accordance with the requirements of 1-21i(b), G.S.


23. It is found that since the question presented here is one of first impression, that it is not appropriate to consider the imposition of a civil penalty in this case.


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


1. The respondent shall post this decision in the office of the town clerk and at the town library.


2. As a good faith effort to provide informational outreach to the community in an orderly environment, the February 10 meeting made creative and constructive use of cable television's local access channel. The possibilities of rebroadcast or even personal replay have great informational value. But in its present state of development such potential enhancement of the process cannot substitute for the legal requirement of an open and accessible meeting.


Approved by order of the Freedom of Information Commission at its special meeting of May 14, 1986.


Karen J. Haggett

Clerk of the Commission