FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 93-215
Chairman, Norwalk Conservation Commission,
Respondent December 8, 1993
The above-captioned matter was heard as a contested case on November 2, 1993, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
The Commission on its own motion makes full exhibits the following documents which, at the hearing on this matter, were offered by the respondent and marked for identification purposes only:
Respondent's Exhibit I
Respondent's Exhibit II
Respondent's Exhibit III
Respondent's Exhibit IV
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 August 11, 1993, the complainant appealed to the Commission, alleging that he had been denied access to the public records of the Norwalk Conservation Commission (the "NCC") by the respondent.
3. It is found that the complainant, by letter dated July 22, 1993, requested access to the minutes of and permits granted by the NCC.
4. It is found that the respondent by letter dated August 9, 1993 denied the complainant's request, citing the decision of this Commission in contested case Docket #FIC 92-48, Lloyd Crossland vs. Chairman, Norwalk Conservation Commission.
5. The Commission takes administrative notice of its record and final decision in Docket #FIC 92-48.
Docket #FIC 93-215 Page 2
6. It is found that the minutes and granted permits that the complainant seeks to inspect are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
7. In Docket #FIC 92-48, the Commission found that, at the time of the complainant's January 1992 requests for the respondent's minutes and tapes of meetings, the documents were also the subject of a pending discovery dispute between the parties, to be decided by a federal tribunal.
8. The Commission in Docket #FIC 92-48 therefore declined to exercise its jurisdiction as a matter of comity between tribunals.
9. It is found that there remain at least two federal court actions pending between the parties to this complaint.
10. The complainant now maintains that he does not seek to inspect the the respondent's records in connection with any ongoing litigation.
11. The respondent in turn maintains that the records that the complainant now seeks to inspect are the same, or the same kind of, records that he sought previously in Docket #FIC 92-48.
12. The respondent makes no claim that the records are intrinsically exempt from disclosure, but rather that any order of disclosure by the Commission would allow the complainant to circumvent the court-ordered completion of discovery in the federal cases between the parties.
13. It is found that the Commission's decision in Docket #FIC 92-48 was predicated on a discovery request and objections then pending in federal court.
14. It is found that discovery has been ordered completed in the federal court cases pending between the parties, and that there is no pending discovery request or objection in the federal court cases.
15. It is also found that the records which the complainant seeks to inspect, particularly the minutes of the respondent's public meetings, are the epitome of the class of records which the FOI Act guarantees will be open to the public.
16. It is found that to continue to decline to exercise jurisdiction in this matter is tantamount to barring the complainant from entering the respondent's records room unless he discontinues his litigation against the NCC.
17. It is therefore concluded that the principle of comity between tribunals should not extend so far as to deny the
Docket #FIC 93-215 Page 3
complainant the right to inspect minutes of public meetings and records of granted permits.
18. It is therefore concluded that the respondent violated 1-19(a), G.S., by denying the complainant the opportunity to inspect the requested records.
19. Due to the unusual circumstances of this case, the Commission in its discretion declines to impose civil penalties against either party. In particular, the Commission would not consider it an appropriate exercise of discretion to levy a civil penalty against a respondent who had acted in a manner he reasonably believed to be consistent with the Commission's previous decision in Docket #FIC 92-48.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith permit the complainant to inspect the minutes of its meetings and records of granted permits.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 8, 1993.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 93-215 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 Lawrence D. Church, Esq.
Pirro & Church
120 East Avenue
P.O. Box 487
Norwalk, CT 06852-0487
Chairman, Norwalk Conservation Commission
c/o M. Jeffry Spahr, Esq.
P.O. Box 798
Norwalk, CT 06856-0798
Elizabeth A. Leifert
Acting Clerk of the Commission