FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 92-380
Berlin Assistant Town Engineer,
Respondent July 14, 1993
The above-captioned matter was heard as a contested case on May 14, 1993, 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 of complaint filed December 30, 1992, the complainant appealed to the Commission, alleging that her December 15, 1992 request for certain documents was not complied with.
3. It is found that the complainant by letter dated December 15, 1992 requested from the respondent the following:
a. the times and dates of certain workshops;
b. the names of the persons in attendance at each workshop;
c. a copy of the notes taken at each workshop.
d. the purpose of the workshops; and
e. any decisions made or conclusions drawn as a result of the workshops.
4. It is found that the complainant by letter dated December 16, 1992, clarified her December 15 request, indicating that the workshops she referred to were those relating to a proposed Fox Hill Affordable Housing Development held sometime between August and December 1992.
Docket #FIC 92-380 Page 2
5. It is found that the respondent did not respond to the complainant's request until approximately two weeks before the hearing in this matter, at which time he provided a list of the members of the inland wetlands and watercourses commission, staff members, and representatives of Fox Hill Land Company in attendance at 5:00 and 6:00 p.m. sessions of a workshop held on October 22, 1992 concerning the Fox Hill Subdivision.
6. The respondent maintains that the October 22, 1992 workshop was not a meeting within the meaning of 1-18a(b), G.S.
7. Section 1-18a(b), G.S., provides in relevant part:
"Meeting" means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.
8. It is found that the Berlin inland wetlands and watercourses commission is a public agency within the meaning of 1-18a(a), G.S.
9. It is found that the developer of the Fox Hill subdivision had previously sought a permit to conduct regulated activities on wetlands, which had been denied by the inland wetlands commission.
10. It is found that the developer changed his plan for the subdivision to avoid conducting regulated activities on wetlands.
11. It is found that the staff of the inland wetlands commission, including the respondent, who is that commission's agent, concluded that the revised plan did not include activities regulated by the commission.
12. It is found that several members of the inland wetlands commission, including its vice-chairman, had concerns about whether the plan in fact involved regulated activities.
13. It is found that members of the inland wetlands commission at first addressed their concerns to the mayor of Berlin, to the respondent, and to other staff of the commission.
14. It is found that the members of the inland wetlands commission ultimately requested the October 22 workshop so that they could obtain information about the relationship between the developer's revised plan and any activities regulated, or not regulated, by the commission.
Docket #FIC 92-380 Page 3
15. It is found that the workshop was conducted in two consecutive sessions, one at 5:00 p.m. the other at 6:00 p.m.
16. It is found that a total of four members of the commission attended the two sessions.
17. It is found that at each session the developer, his soil scientist and his engineer made presentations to the commission about the impact, or lack of impact, of their development on any wetlands.
18. The Commission takes administrative notice of the nature of public hearings conducted by land use regulatory commissions, and finds that the workshop sessions were functionally indistinguishable from hearings conducted by a commission at which a developer and his experts or other witnesses present a plan to the agency.
19. It is found that the principal difference between the workshop sessions as actually conducted and an ordinary public hearing of a land use commission was that the public was not notified of the workshops, and opponents of the development were not given an opportunity to rebut the developer's presentation or speak in opposition to the plan of development.
20. The respondent maintains that the October 22 workshop was not a meeting because there was no matter pending before the inland wetlands commission.
21. It is found, however, that the inland wetlands commission met in order to consider and determine whether the developer's revised plan involved activities regulated by the commission, a determination which was, at a minimum, within their advisory power, if not direct supervision and control.
22. It is concluded that the workshop was a hearing or other proceeding of the inland wetlands commission within the meaning of 1-18a(b), G.S.
23. The Commission notes that the complainant alleged only that she had been denied records of the workshop meeting by the respondent assistant town engineer, and did not allege any violations of the FOI Act by the inland wetlands commission, which agency was not named as a respondent in this matter, or allege that the meeting itself was conducted in violation of the FOI Act.
24. It is concluded, however, that any records kept of the workshop meeting are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
25. It is also concluded that the respondent violated 1-15 and 1-19(a), G.S., by failing to provide, promptly upon request, a copy of the record described in paragraph 5, above.
Docket #FIC 92-380 Page 4
26. It is also found, however, that the respondent has no other records responsive to the complainant's request.
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 strictly comply with the requirements of 1-15 and 1-19(a), G.S., concerning the prompt provision of copies of public records upon request.
2. Although, as noted in paragraph 23 of the findings, above, the Commission was not asked, and therefore in its discretion will not decide, whether the October 22 workshop meeting of the inland wetlands commission was in violation of any provision of the FOI Act, the Commission directs the respondent to provide a copy of this decision to the inland wetlands commission, as representing the Commission's judgment about whether such a workshop is subject to the requirements of the FOI Act.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 14, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-380 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:
195 Spruce Brook Road
Berlin, CT 06037
Berlin Assistant Town Engineer
Atty. Timothy Sullivan, Jr.
Gafne Law Associates
One Liberty Square
New Britain, CT 06050
Debra L. Rembowski
Acting Clerk of the Commission