FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 92-331
Middletown Town and City Clerk, and Middletown Charter Revision Commission,
Respondents May 26, 1993
The above-captioned matter was heard as a contested case on April 6, 1993, 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 and conclusions of law are reached:
1. The respondents are public agencies within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed October 21, 1992, the complainant appealed to the Commission, alleging that certain agendas, minutes and tape recordings of the respondent charter revision commission were not available from the town clerk on October 19, 1992.
3. It is found that the complainant's attorney visited the office of the town clerk on October 19, 1992 to review the file of the respondent charter revision commission in preparation for a Freedom of Information Commission hearing into allegations made by the complainant against the respondent charter revision commission in Docket #FIC 92-154.
4. It is found that minutes and agendas for approximately seven of the respondent commission's 18 meetings were not on file with the town clerk on that day.
5. It is found that the office of the town clerk immediately made inquiries to obtain copies of the missing records.
6. It is found that copies of all of the missing records were provided to the complainant on or before October 29, 1992 and filed with the respondent town clerk.
Docket #FIC 92-331 Page 2
7. It is found that the missing minutes and agendas are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
8. It is found that the respondent charter revision commission has no office or regular place of business.
9. Section 1-19(a), G.S., provides in relevant part that each public agency:
shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located ....
10. It is concluded that the respondent charter revision commission violated 1-19(a), G.S., by failing to maintain complete minutes and agendas with the town clerk.
11. It is found that when the complainant sought records on October 19, 1992, it asked for a fee waiver, which the respondent town clerk denied.
12. Section 1-15(d) provides in relevant part:
The public agency shall waive any fee provided for in this section when ... (3) in its judgment, compliance with the applicant's request benefits the general welfare.
13. It is found that the respondent town clerk ascertained that the request was being made on behalf of the Democratic town chairman, concluded that the request was made in furtherance of partisan politics, and determined that compliance with the complainant's request would not benefit the general welfare.
14. The complainant maintains that the town clerk's determination was arbitrary and based solely on the complainant's political affiliation, and that compliance with the request would benefit the general welfare because resolution of the complaint in Docket #FIC 92-154 benefits the general welfare.
15. It is concluded that 1-15(d) gives an agency the discretion to judge whether compliance with a request benefits the general welfare.
16. It is found that the respondent exercised his judgment to deny the fee waiver in good faith, and the Commission finds nothing in this case to cause it to second guess that judgment.
Docket #FIC 92-331 Page 3
17. In his concluding statement to the Commission, the complainant requested a variety of forms of relief directed at the respondent town clerk, such as requiring the town clerk to send FOI Act guidelines to all town agencies, to monitor agencies for compliance with minutes- and notice-filing requirements, to submit criteria for the waiver of fees for approval by the Commission, and to post the amounts permitted to be charged for copies.
18. It is concluded, however, that the respondent town clerk violated no provisions of the FOI Act in this case, and that an order directing him to take remedial action is clearly unwarranted.
19. It is also found that the respondent charter revision commission has been dissolved, and that the complainant in fact received the documents it sought for use at the hearing in Docket #FIC 92-154 which he prosecuted.
20. It is therefore concluded that any order directed at future compliance by the charter revision commission with the FOI Act would be pointless.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The complaint is dismissed as to the respondent town clerk.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-331 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:
c/o Atty. Maria Madsen Holzberg
46 Washington Street
Middletown, CT 06457
Middletown Town and City Clerk and Middletown Charter Revision Commission
c/o Atty. Trina A. Solecki
City Attorney's Office
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457-1300
Debra L. Rembowski
Acting Clerk of the Commission