FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
O & G. Industries, Inc.,
against Docket #FIC 95-218
Beacon Falls Planning and Zoning Commission,
Respondent May 22, 1996
The above-captioned matter was re-opened and heard as a contested case on April 9, 1996, at which time the complainant and the respondent appeared, stipulated to certain facts and presented 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 dated and filed with the Commission on June 29, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by refusing to allow a stenographer, hired by the complainant, to record the respondent's deliberations on May 31, 1995, at a special meeting on whether to terminate the complainant's operation of an earth products processing plant (hereinafter "the non-conforming use matter"). The complainant requested, in its letter of complaint, that the respondent's vote to terminate its operation as a non-conforming use be declared null and void.
3. It is found that the respondent held a special meeting on May 31, 1995.
4. At the hearing on this matter, the respondent conceded that at the May 31, 1995 meeting, described in paragraph 3, above, it prohibited the complainant from recording the proceedings of such meeting.
5. Section 1-21a, G.S., provides:
(a) At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-21, proceedings of such public agency may be recorded...
Docket #FIC 95-218 Page 2
subject to such rules as such public agency may have prescribed prior to such meeting, by any person....Any recording...equipment may be so located within the meeting room as to permit the recording...of the proceedings of such public agency....the person recording the proceedings, shall be required to handle the recording as inconspicuously as possible and in such manner as not to disturb the proceedings of the public agency....
(b) Any such public agency may adopt rules governing such recording...but, in the absence of the adoption of such rules and regulations by such public agency prior to the meeting, such recording shall be permitted as provided in subsection (a).
6. It is concluded that the respondent violated 1-21a(a), G.S., when it failed to permit the complainant to record the proceedings of the May 31, 1995 special meeting.
7. Section 1-21i(b)(2), G.S., provides in relevant part:
The commission may declare null and void any action taken at any meeting which a person was denied the right to attend....
8. It is found that the complainant was not denied the right to attend the May 31, 1995 special meeting, but was denied the right to record such meeting.
9. It is found that at its October 19, 1995 public hearing and November 16, 1995 special meeting, the respondent voted to rescind its May 31, 1995 decision, which decision the complainant requests be declared null and void.
10. The complainant contends that the May 31, 1995 decision was not properly rescinded by the respondent because the October 19, 1995 vote improperly occurred at a public hearing, and the respondent failed to provide notice that the May 31, 1995 decision would be rescinded at the October 19, 1995 hearing and the November 16, 1995 special meeting.
11. Nothing in the FOI Act, however, precludes the respondent from voting at a public hearing. If the respondent's vote constitutes a violation, it is not a violation of the FOI Act.
12. It is found that the respondent provided notice in the October 19, 1995 public hearing notice and the November 16, 1995 meeting notice that it would meet to consider and determine the non-conforming use matter.
Docket #FIC 95-218 Page 3
13. It is found that such notice, as described in paragraph 12, above, was sufficient to provide notice that the respondent might vote on the non-conforming use matter.
14. It is also found that the respondent held a new public hearing and permitted the complainant to record such proceedings.
15. It is therefore concluded that a null and void remedy would not provide relief appropriate to rectify the denial of the right to record the May 31, 1995.
16. Accordingly, the request for a null and void remedy is denied.
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 1-21a(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 22, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-218 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:
O & G Industries, Inc.
c/o Clare E. Kindall, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103
Beacon Falls Planning and Zoning Commission
c/o Robert Carter, Esq.
Carter & Civitelle
One Bradley Road - Suite 301
Woodbridge, CT 06525
Elizabeth A. Leifert
Acting Clerk of the Commission