In the Matter of a Complaint by FINAL DECISION


Stella Gauvin,




against Docket #FIC 88‑321


Town of Branford Zoning Board

of Appeals,


Respondent December 14, 1988



The above‑captioned matter was heard as a contested case on September 23, 1988, 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:


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


2. By letter dated August 7, 1988 and filed with the Commission on August 9, 1988, the complainant appealed to the Commission, alleging that the respondent improperly held an executive session at its July 12, 1988 regular meeting, held an inaudible meeting, refused to return certain photographs and did not file timely minutes. The complainant also requested that all the respondent's actions taken at that meeting be declared null and void.


3. The respondent claims that it did not convene in executive session; that audibility was not an issue; that the photographs were part of the complainant's application and could not be given to the complainant during the time period for appealing the respondent's decision; and that the minutes were filed in a timely manner.


4. It is found that during the first portion of the respondent's meeting, its five voting members sat behind one side of a rectangular table and faced the audience so applicants and members of the public could address them.


5. It is found that after the respondent heard from everyone who wanted to speak on applications that evening, its chairman stated that it would convene in "executive session" to discuss the applications.





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6. It is found that the respondent did not ask or expect the public to leave the room during this session, but rather that two of its members moved to the opposite side of the table and sat with their backs towards the audience to facilitate the discussion among the respondent's members.


7. It is concluded, therefore, that the respondent did not convene in executive session.


8. Nonetheless, it is found that calling this discussion an executive session misled the public.


9. It is also found that by their decorum the respondent's members further discouraged public access to their discussion.


10. It is concluded, therefore, that the respondent violated 1‑18a(e) and 1‑21(a), G.S., by calling a public session an executive session and discouraging public access to it.


11. It is found that the photographs submitted by the complainant to the respondent are public records which the respondent must maintain under 1‑19(a), G.S., and the state records retention statutes. In addition, 1‑15, G.S., requires public agencies to provide copies of public records, not the original records.


12. It is concluded, therefore, that the respondent did not violate 1‑15 or 1‑19(a), G.S., by refusing to provide the complainant with the original photographs.


13. It is noted, nonetheless, that 1‑15 and 1‑19(a), G.S., grant the complainant the right to receive copies of the photographs and that the respondent's members should have offered to provide copies.


14. It is found that the respondent failed to meet its burden of proving that it filed minutes of its July 12, 1988 meeting within seven days of the meeting.


15. Thus it is concluded that the respondent violated 1‑21(a), G.S., by not filing minutes within seven days.


16. It is found that the respondent is aware of audibility problems during its meetings. The respondent's chairman announced at the beginning of the meeting that those who could not hear should sit in the first row when their application was being considered and that the only interruption that would be accepted would be for those who could not hear to indicate so.





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17. It is also found that the complainant sat in the front row, was unable to hear the deliberations about her application, and felt intimidated from interrupting to indicate so.


The following order by the Commission is hereby recommended based on the record of the above‑captioned complaint:


1. The respondent henceforth shall act in strict compliance with 1‑21(a), G.S., using the term "executive session" to describe only those sessions convened in accordance with 1‑18a(e), G.S., and filing minutes within seven days of each regular meeting.


2. The respondent shall schedule an educational workshop on Freedom of Information Act requirements to be given by a Commission staff attorney within 60 days of the mailing of the notice of final decision in this case. All members of the respondent baord as well as all Branford administrators and members of other boards and commissions shall be invited to attend such workshop.


3. The Commission urges the respondent to have all its members face the public during all public sessions and to ameliorate its audibility problems.


4. The Commission declines to declare null and void the actions taken at the respondent's July 12, 1988 meeting.



Approved by order of the Freedom of Information Commission at its special meeting of December 14, 1988.





Catherine H. Lynch

Acting Clerk of the Commission