FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Trenton E. Wright, Jr.,

 

Complainant

 

against Docket #FIC 90-482

 

Daniel Lein, First Selectman, Town of Windham and Susan Johnson, Armand Martineau, Lorraine McDevitt and Walter Pawelkiewicz, Windham Board of Selectmen Utilities Committee,

 

Respondents October 9, 1991

 

The above-captioned matter was heard as a contested case on April 1, 1991, at which time the complainant appeared but the respondents failed to appear. The civil penalty phase of the above-captioned matter was heard on April 29, 1991, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the question of the imposition of a civil penalty against the respondents.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1. It is found that the respondent committee is a sub-committee of the town's board of selectmen.

 

2. It is found that the respondent first selectmen is an ex-officio member of the the respondent committee in accordance with section V-2 of the town charter.

 

3. It is concluded that the respondents are public agencies within the meaning of 1-18a(a), G.S.

 

4. Pursuant to 1-19, G.S., by letter of request to the town clerk dated November 21, 1990 (hereinafter "document requests"), the complainant requested copies of the minutes of the respondent committee's November 1 and 8, 1990 special meetings (hereinafter "November special meetings".)

 

5. The document requests were hand-delivered by the complainant to the town clerk on November 21, 1990.

 

Docket #FIC 90-482 Page 2

 

6. It is found that shortly after presenting his document requests to the town clerk, the complainant was directed to the respondent first selectman's office where he orally requested the minutes for the November special meetings.

 

7. It is found that the minutes of the respondents' meetings are generally filed with the town clerk.

 

8. It is found that the minutes for the November special meetings were not on file with the town clerk at the time of the complainant's request.

 

9. The complainant filed his appeal with this Commission on December 11, 1990.

 

10. The complainant requested that the Commission take administrative notice of the record, case file and final decisions in contested case docket #'s (hereinafter "docket #'s"), FIC 90-48, 90-49, 90-50, 90-266, 90-287 and 90-288.

 

11. At the hearing on this contested case held on April 1, 1991, the complainant requested the imposition of civil penalties against the respondents because of their failure to appear and their alleged pattern and practice of violating the Freedom of Information Act (hereinafter "FOIA").

 

12. The respondents concede timely receipt of the "Notice of Hearing and Order to Show Cause" for the April 1, 1991 hearing on this contested case.

 

13. It is found that the failure of the respondents to attend the April 1, 1991 hearing was allegedly the result of an erroneous belief on the part of the respondent first selectman that the hearing was not going to proceed.

 

14. It is found that the requested information is required to be maintained as a public record in accordance with 1-21(a), G.S.

 

15. Section 1-21(a), G.S., states in relevant part that:

 

... minutes shall be available for public inspection within seven days of the [regular or special meeting] session to which they refer.

 

Docket #FIC 90-482 Page 3

 

16. The respondents concede that the minutes of the November special meetings were not filed with the town clerk in accordance with 1-21(a), G.S.

 

17. The respondents argue that there were "mitigating circumstances" that provided reasonable grounds for their noncompliance.

 

18. It is found that the "mitigating circumstances" were that the acting secretary for the respondent committee was unable to prepare and file the minutes for the November special meetings in a timely fashion.

 

19. It is found that the delegation of duties of a public agency under the FOIA to a staff member does not excuse the agency for violations of the FOIA, and that the respondents are responsible for filing the minutes of their meetings within the time period set forth in 1-21(a), G.S.

 

20. It is concluded that the respondents violated the time requirements for the filing of minutes as set forth in 1-21(a), G.S.

 

21. The Commission takes administrative notice of the record, case file and final decisions in docket #'s FIC 90-48, 90-49, 90-50, 90-266, 90-287 and 90-288.

 

22. Specifically, the Commission takes administrative notice of the final decision in docket #FIC 90-266 that found the respondent first selectman in violation of 1-21(a), G.S., for failing to make minutes available for public inspection within seven days of the meeting date.

 

23. In addition, the Commission reminds the respondents that in paragraph two of the order in docket #'s FIC 90-287 and 90-288, the Commission cautioned the respondent first selectman that future violations of the FOIA might subject him to a civil penalty.

 

24. The Commission takes administrative notice of the fact that on January 16, 1990 and May 9, 1991 the respondent first selectman attended an educational workshop on the FOIA led by a Commission staff attorney. Those workshops were held for the benefit of all town officials and their constituents.

 

Docket #FIC 90-482 Page 4

 

25. The Commission notes that in each of the contested cases listed in paragraphs 10 and 21 of the findings, above, the respondent first selectman had attended an educational workshop on the FOIA prior to committing the violation complained about.

 

26. It is found that the respondents' noncompliance with the time requirements for the filing of the minutes of the November special meetings was neither wilful nor deliberate.

 

27. However, it is also found that the FOIA violations committed by the respondents was imprudent, and it evidences a disregard for the letter and the spirit of the FOIA.

 

28. It is found that despite the Commission's cautionary language in earlier final decisions, and despite the Commission's efforts to educate the elected officials of the town of Windham, a pattern of noncompliance with the requirements of the FOIA is emerging.

 

29. In light of all of the foregoing facts, it is concluded that the FOIA violation committed by the respondents was without reasonable grounds.

 

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

 

1. Henceforth the respondents shall act in strict compliance with 1-21(a), G.S., and comply with the time requirements for the filing of minutes as set forth in 1-21(a), G.S.

 

2. The Commission imposes a civil penalty against the respondent first selectman for noncompliance with 1-21(a), G.S., in the amount of $100. The aforementioned civil penalty is payable to the Commission within forty-five days of the date of mailing of the notice of final decision in this case.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 9, 1991.

 

 

Karen J. Haggett

Clerk of the Commission

 

Docket #FIC 90-482 Page 5

 

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:

Trenton E. Wright, Jr.

232 Mansfield Avenue

Willimantic, CT 06226

 

Daniel Lein, First Selectman, Town of Windham, Susan Johnson, Armand Martineau, Lorraine McDevitt, Walter Pawelkiewicz, Windham Board of Selectmen Utilities Committee

c/o Nicholas F. Kepple, Esq.

Suisman, Shapiro, Wool, Brennan & Gray

P.O. Box 1491

New London, CT 06320

 

 

Karen J. Haggett

Clerk of the Commission