In the Matter of a Complaint by FINAL DECISION


Paul C. Halas, Jr.,




against Docket #FIC 88-109


Redding Planning Commission, Diane Taylor, Chairman, Redding Planning Commission, and Michael N. Lavelle, Redding Town Counsel,


Respondents July 27, 1988


The above-captioned matter was heard as a contested case on May 16, 1988, at which time the complainant and the respondents 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:


1. The respondents are public agencies within the meaning of 1-18a(a), G.S.


2. By letter dated March 9, 1988, the complainant requested to inspect or copy the respondent planning commission's complete file pertaining to application #394, the Sanfordtown Meadow file.


3. By letter dated March 9, 1988, the respondent chairman denied the complainant's request.


4. By letter filed on March 25, 1988, the complainant appealed to the Commission.


5. At the hearing the complainant requested that the Commission impose a civil penalty upon the respondents.


6. The respondents claim that the requested records became records of the court when the originals were returned to court for a pending appeal and that the Freedom of Information Act does not require the respondent commission to maintain a copy of the records under such circumstances.


Docket # 88-109 Page Two


7. It is found that the records in question are public records, as defined by 1-18a(d) and 1-19, G.S., maintained by the respondent planning commission.


8. It is found that from March 8, 1988, until March 30, 1988, the respondent town counsel was using the requested records, and that they were not available, therefore, at the respondent commission's office when the complainant requested them.


9. It is found that the respondents town counsel and commission both were aware of the complainant's request by March 9, 1988.


10. It is further found that on March 30, 1988, the respondent town counsel sent the originals to court as the partial return of record for an appeal. He sent a copy of that partial return of record to the complainant's attorney that same day.


11. It is found that the complainant was denied access to the respondent commission's file for three weeks.


12. Thus it is concluded that the complainant did not receive, promptly upon written request, a copy of the requested records, in violation of 1-15 and 1-19(a), G.S.


13. It is also concluded that the complainant was denied the right to inspect records maintained by the respondent commission during its regular business hours, in violation of 1-19(a), G.S.


14. It is further concluded that the respondent commission failed to keep public records in its custody at its regular office in an accessible place, in violation of 1-19(a), G.S.


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


1. The respondent commission henceforth shall act in strict compliance with 1-15 and 1-19(a), G.S.


2. The respondent town counsel henceforth shall return records of the respondent commission which he uses to the commission's office in a timely manner.


Docket #88-109 Page Three


3. The respondents commission and town counsel forthwith shall establish a procedure to ensure that a copy of each commission record is kept by the commission if the town counsel needs to use the record for an extended period of time or sends the original to court.


4. The Commission recommends that the respondent commission contact the state Public Records Administrator for information on other applicable records retention statutes and schedules.


5. The Commission declines to impose a civil penalty upon the respondents.


Approved by order of the Freedom of Information Commission at its special meeting of July 27, 1988.


Catherine H. Lynch

Acting Clerk of the Commission