FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-284
June 4, 1997

In the Matter of a Complaint by William J. Raymond, Jr. and Angela D. Raymond, Complainants
against
Brookfield Zoning Commission, Respondent

The above-captioned matter was heard as a contested case on February 11, 1997, at which time the complainants 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 dated July 13, 1996, the complainants appealed to the Commission alleging that with respect to the respondent’s June 13, 1996 meeting, the respondent violated the Freedom of Information ("FOI") Act by failing to:

a. make the necessary motion and vote to convene in executive session to discuss pending litigation;

b. identify the pending litigation to be discussed in executive session;

c. prepare and file minutes of the executive session which disclosed the persons in attendance; and

d. indicate on its agenda that it would act upon Fairfield Resources Management’s request for an extension of a natural resources recovery permit.

The complainants also requested in their complaint that the Commission declare null and void the respondent’s action taken at the subject meeting to extend the permit and requested at the hearing on this matter that the Commission impose civil penalties against the respondent.

3. The letter of complaint in this case, as described in paragraph 2, above, was faxed to the Commission and filed on Monday July 15, 1996.

4. Section 1-21i(b)(1), G.S., provides in relevant part:

Any person . . . denied any other right conferred by sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, 1-20a and 1-21 to 1-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial. . . .

5. Consequently, the Commission has jurisdiction over this complaint only if the complaint in this case was "filed" within thirty days of the alleged violation on June 13, 1996.

6. Section 1-21j-22 of the Regulations of Connecticut State Agencies states:

All orders, decisions, findings of fact, complaints, correspondence, motions, petitions, and any other documents governed by these rules shall be deemed to have been filed or received on the date on which they are issued or received by the commission at its principal office, except as may hereinafter be provided.

7. Section 1-21j-30 of the Regulations of Connecticut State agencies, in turn, states:

When a hearing is required by law, the contested case shall commence on the date of filing of the complaint or petition for purposes of section 4-181 of the General Statutes.

8. It is found that there is no competent evidence of when the complaint in this matter was faxed to the Commission, although it is possible that it was faxed on the date it was dated – i.e., July 13, 1996 -- within the time period mandated by 1-21i(b)(1), G.S.

9. It is also found, however, that the complaint was not "received by the Commission" until July 15, 1996 because there was no evidence that Commission personnel were present on July 13, 1996 to receive the complaint and establish that it was, in fact, received on that date, and because the complaint itself was not stamped as received and filed by the Commission until July 15, 1996, beyond the time period mandated by 1-21i(b)(1), G.S.

10. It is further concluded that, when 1-21j-22 and 1-21j-30 of the Regulations of Connecticut State Agencies are read together, the operative date for the commencement of this contested case was the date on which the complaint was filed – i.e., July 15, 1996 -- beyond the time period mandated by 1-21i(b)(1), G.S.

11. Consequently, it is concluded that the Commission lacks subject matter jurisdiction over the complaint in this matter pursuant to 1-21i(b)(1), G.S., because it was filed beyond the thirty-day period mandated by that statute.

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

1. The complaint is hereby dismissed.

2. Nothing herein shall be construed to comment on the merits of the complaint in this matter.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 4, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

William J. Raymond, Jr. and Angela D. Raymond
c/o Angela D. Raymond
82 Laurel Hill Road
Brookfield, CT 06804

Brookfield Zoning Commission
c/o Francis J. Collins, Esq.
148 Deer Hill Avenue
Danbury, CT 06810

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

FIC 1996-284/FD/eal/06161997