FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Kevin T. Mullane and Beechwood Gardens Tenants Association,
against Docket #FIC 88-121
Commissioner, State of Connecticut Department of Housing,
Respondent August 10, 1988
The above-captioned matter was heard as a contested case on May 23, 1988, at which time the complainants 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:
1. The respondent is a public agency within the meaning of §1-18a(a), G.S.
2. By letter dated March 18, 1988, the complainants requested to inspect and/or copy the following records:
a. All of the documents in the Beechwood Gardens moderate rental housing project's management file.
b. All financial and operating statements filed after June 30, 1987 for the Beechwood Gardens moderate rental housing project.
c. The records of every public hearing conducted by the respondent pursuant to §8-74, G.S., including tapes, for proposed moderate rental housing projects by developers.
3. By letter dated March 29, 1988, the respondent's deputy commissioner denied the complainants' request on the ground that their request should have been made through the discovery process due to a pending lawsuit.
4. By letter of complaint dated and filed with the Commission on March 31, 1988, the complainants alleged that they were denied access to public records.
Docket #FIC 88-121 Page 2
5. On May 16, 1988, the respondent filed a motion to dismiss with the Commission, but withdrew the motion at the hearing.
6. Prior to the hearing, the respondent provided the complainants with access to his files regarding the Beechwood Gardens moderate rental housing project.
7. The respondent, therefore, has provided the complainants with access to the records described in paragraphs 2a and 2b, above, and they are no longer at issue.
8. The respondent offered to provide access to the tapes of the hearings.
9. At the hearing, the complainants clarified their request for the public hearing records described in paragraph 2c, above, stating that they sought access to the public hearing records as well as the minutes of every public hearing and the record of votes taken on each project.
10. The respondent claims that:
a. He has provided the complainants with copies of the public hearing records concerning proposed moderate rental housing sites.
b. Since he is a single-member public agency, his hearings do not constitute meetings under the Freedom of Information Act (hereinafter "FOIA") and he is not required to file minutes of every public hearing and to record his vote on each proposed housing site.
c. Even if the hearings are meetings subject to the FOIA, the public hearing records constitute minutes of the meetings.
11. The Commission takes administrative notice of the records and final decisions in its contested cases, Docket #FIC 86-84 and Docket #FIC 86-167.
12. It is found that pursuant to §8-74, G.S., the respondent is required to hold a public hearing concerning the suitability of a proposed moderate rental housing project by a developer.
13. It also is found that pursuant to §1-18a(b), G.S., a meeting is defined, in part, as any hearing of a public agency.
Docket #FIC 88-121 Page 3
14. It is concluded to the extent that the respondent's hearings constitute meetings within the definition of §1-18a(b), G.S., such hearings are subject to the meeting requirements of the FOIA, as set forth in Chapter 3, G.S.
15. It is found that the respondent has provided the complainants with copies of the written public hearing records.
16. It is found that the respondent's public hearing record contains the time, place and date of the hearing, the name of the person conducting the hearing, the time the hearing commenced and concluded, the subject of the hearing and the finding and declaration of project site approval by the respondent.
17. It is found that pursuant to §1-19(a), a public agency shall make, keep and maintain a record of the proceedings of its meetings.
18. It is found that pursuant to §1-21(a), G.S., a public agency shall make the minutes of a meeting available for public inspection within 7 days of the session to which they refer.
19. At a minimum, the minutes of a meeting shall reflect the time, place, and date of the meeting, the identities of agency members, the business transpired at the meeting (e.g., a public hearing was held for a certain purpose), and how each agency member voted on each issue before the agency meeting.
20. It is found to the extent that the respondent's public hearing records reflect the time, place and date of the meeting, what agency member was there and the subject of the hearing, such records are sufficent to constitute minutes of the meetings within the meaning of §1-21(a), G.S.
21. It is found, however, that the respondent's public hearing records are not made available for public inspection within 7 days of the hearing to which they refer.
22. It therefore is concluded that the respondent violated §1-21(a), G.S., by failing to make minutes, or as in this case, public hearing records, available for public inspection within 7 days of the meeting to which they refer.
23. With respect to the record of votes taken on proposed housing sites, it is found that the purpose of the hearing is to take evidence concerning the nature and character of the area and neighborhood involved and no "vote" is taken.
24. It is found subsequent to the public hearing, the respondent reviews the file of a particular proposed housing
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site and his approval or disapproval of the site is then reflected in the public hearing records. The public hearing records do not reflect a "vote" taken on each proposed site.
25. It is found that pursuant to §1-21(a), G.S., the votes of each member of a public agency shall be reduced to writing and made available for public inspection within 48 hours of the meeting at which they were taken. The votes also shall be recorded in the minutes of the meeting to which they refer.
26. It is found, however, that the requirement to record votes applies to multi-member public agencies, and that as a single-member public agency, the respondent is not required to record his "vote" concerning site suitability within the meaning of §1-21(a), G.S.
27. It therefore is concluded that the respondent did not violate §1-21(a), G.S., by failing to record a "vote" concerning the site suitability for each proposed housing project.
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 act in strict compliance with the requirements of §1-21(a), G.S., concerning the filing minutes and the making of them available for public inspection within 7 days of the meetings to which they refer.
2. The respondent shall forthwith designate the record of every public hearing described in paragraph 2 of the findings, above, as the minutes of the meetings.
3. The Commission notes this decision should not be construed as requiring the respondent to make a determination of site suitability within 7 days from the date a public hearing is held on a particular housing site. The respondent merely needs to make, keep and maintain minutes of each hearing, setting forth the minimum requirements as described in paragraph 18 of the findings, above, and make them available to the public in a timely manner.
Approved by order of the Freedom of Information Commission at its special meeting of August 10, 1988.
Catherine H. Lynch
Acting Clerk of the Commission