FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
E. J. Marshall Corporation,
against Docket #FIC 89-473
New Hartford Planning and Zoning Commission,
Respondent July 11, 1990
The above-captioned matter was heard as a contested case on April 17, 1990, and was consolidated for hearing with contested case docket #FIC 89-459 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 1-18a(a), G.S.
2. By letter filed with this Commission on December 27, 1989, the complainant alleged that the respondent violated 1-21, G.S. at its regular meeting of December 13, 1989 in the following ways: a) by failing to provide notice to the complainant that its application would be acted upon at the meeting of December 13, 1989; b) by failing to set forth in its agenda with requisite specificity the action to be taken on the complainant's application at this meeting, and c) by acting upon the complainant's application at that meeting without a 2/3 vote of the respondent members to take up this item.
3. It is found that the complainant's allegation identified in paragraph 2 a), above, fails to state a claim for which relief may be granted under the provisions of the Freedom of Information ("FOI") Act.
4. The respondent claims that the complainant's application was appropriately noted on the agenda for the meeting in question as its fourth item: "4. Decisions"; and, therefore, no vote was necessary to add the complainant's application to its agenda.
Docket #FIC 89-473 Page 2
5. It is found that, as a matter of practice, the respondent does list on its agendas the names of applications that legally must be considered at any given meeting due to statutory deadlines.
6. The respondent claims, however, that it does not always know 24 hours in advance of a regular meeting how many other applications it will have the time to decide at any given meeting and that, therefore, it considers the designation "decisions" is preferable to naming all applications before it on its agendas.
7. It is found that the complainant's representative was present at the respondent's meeting of December 13, 1989.
8. The respondent claims that the complainant had actual knowledge that the complainant's business would be considered at the meeting in question due to the presence of the complainant's representative.
9. It is concluded, however, that the complainant's presence at the December 13, 1989 meeting does not provide the respondent with an exemption from compliance with the FOI Act.
10. It is found that the item of discussion in question was listed on the respondent's agenda as item "4. Decisions."
11. It is also found, however, that in the instant case, the designation identified in paragraph 4, above, is insufficient to notify the public that the business of the E.J. Marshall Corporation would be discussed or acted upon at the regular meeting in question.
12. It is concluded, therefore, that the respondent violated 1-21(a), G.S. by failing to list by name the application of the complainant as a matter to be acted upon in the agenda of its November 20, 1989 regular meeting.
13. Under the facts of this case, however, the Commission declines to declare the actions of the respondent concerning the complainant's application null and void.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent henceforth shall act in strict compliance with the requirements of 1-21(a), G.S., and clearly list all business to be transacted on its agendas.
Docket #FIC 89-473 Page 3
2. This Commission advises that to avoid similar problems in the future, the respondent should consider listing all business that is likely to be discussed or acted upon at any given meeting, although they may be unable to complete agenda business on occasion.
Approved by order of the Freedom of Information Commission at its regular meeting of July 11, 1990.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 89-473 Page 4
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:
E. J. MARSHALL CORPORATION
c/o Bruce J. Goldstein, Esq.
Hoberman & Pollack, P.C.
One State Street
Hartford, CT 06103
NEW HARTFORD INLAND WETLAND AND WATERCOURSES COMMISSION
c/o John W. Pickard, Esq.
Howd, Lavieri & Finch
434 Prospect Street
P.O. Box 839
Torrington, CT 06790
Tina C. Frappier
Acting Clerk of the Commission