FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1997-056
September 24, 1997

In the Matter of a Complaint by Fairfield Resources Management, Inc. and Rock Acquisition Limited Partnership, Complainants
against
Stanley Kurpiewski, Chairman, Inland Wetlands Commission, Town of Brookfield; John Smoliga, as a member of the Inland Wetlands Commission, Town of Brookfield; and Inland Wetlands Commission, Town of Brookfield, Respondents

The caption of this matter has been amended, revised and restated in order to reflect the dismissal of the complaint as to Thomas Altermatt. The matter was heard as a contested case on July 21, 1997, at which time the complainants and the respondents appeared, 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 named in the caption above are public agencies within the meaning of 1-18a(a), G.S.; however, Thomas Altermatt is not a public official and, therefore, is not a public agency.

2. By letter dated January 22, 1997, and filed on January 31, 1997, the complainant appealed to the Commission alleging that the respondent commission violated the Freedom of Information ("FOI") Act with respect to its January 6, 1997 meeting by:

a. improperly considering and voting upon items which did not appear in the notice of special meeting, namely a "cease and desist order" applicable to the complainants;

b. voting upon items which were not discussed before the respondent commission;

c. improperly tampering with the record by adding items to a decision after the vote on an application; and

d. not making tapes of the meeting available upon a request by the complainants.

As a remedy for these alleged violations, the complainant requested that civil penalties be assessed against the respondents and that the "cease and desist" order of the respondent commission be "rescind[ed]" by this Commission.

3. Section 1-21(a), G.S., states in pertinent part:

[t]he notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.

4. Section 1-19(a), G.S., states in pertinent part:

[e]ach such agency shall make, keep and maintain a record of the proceedings of its meetings.

5. Section 1-19(a), G.S., also provides in pertinent part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right…to receive a copy of such records in accordance with the provisions of section 1-15.

6. Section 1-15(a), G.S., in turn, provides in pertinent part that:

(a)ny person applying in writing shall receive, promptly, upon request, a plain or certified copy of any public record.

7. It is found that the respondent commission held a special meeting on January 6, 1997, the notice for which had an item listing the application of the complainant Fairfield Resources Management, Inc., but not any indication that a "cease and desist" order would be part of the business transacted at the meeting.

8. It is found that a "cease and desist" order was not discussed or voted upon at the respondent commission’s January 6, 1997 meeting, and that the resolution which was adopted, denying the permit application of the complainant, did not include a "cease and desist" order.

9. It is found that a "cease and desist" order was added to the resolution by the respondent commission’s consultant following the January 6, 1997 meeting, and that the resolution including a "cease and desist" order was signed and approved by the individual respondents as being the resolution adopted at the January 6, 1997 meeting.

10. It is found that, with reference to the complainants’ request for civil penalties, there is insufficient evidence in the record to form the basis of any finding concerning who had responsibility for the "cease and desist" order being placed in the resolution as issued after the meeting, when it was not part of the resolution discussed and voted upon at the meeting of January 6, 1997.

11. It is concluded that, because the resolution issued by the respondents was not an accurate record of the decision taken at the January 6, 1997 meeting of the respondent commission, the respondents, therefore, violated 1-19(a), G.S.

12. It is found that the complainant was furnished with the tapes discussed at paragraph 2d, above, on January 22, 1997, which was the same day as the date of the complainant’s request. It is also found that the secretary for the respondent commission was a part-time secretary who worked at her home and not in the town hall.

13. It is found that at a meeting of the respondent commission on January 24, 1997, the respondents reconsidered the January 6, 1997 resolution as it had been drafted and voted again to adopt it, except with the "cease and desist" order deleted.

14. The Commission takes administrative notice of its final decision in contested case FIC #1996-54, which found a violation of FOI notice requirements.

15. It is concluded that, because the respondents did not take up an item of business, namely a "cease and desist" order, at their January 6, 1997 meeting which had not been listed on the notice of special meeting, the respondents, therefore, did not violate 1-21(a), G.S.

16. It is concluded that, even if the respondents voted upon items, including a "cease and desist" order, at their January 6, 1997 meeting which were not discussed before the respondent commission, which in fact they did not do, such voting would not constitute a violation of any provision of the Freedom of Information statutes.

17. It is concluded that the tapes discussed at paragraphs 2d and 12, above, were furnished to the complainant promptly and, accordingly. there was no violation of 1-19(a) and 1-15(a), G.S. in this matter.

18. It is concluded that the issue of whether the "cease and desist" order should be declared null and void, as requested by the complainant in his request for rescission, is moot.

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

1. Henceforth, the respondents shall keep an accurate record of the proceedings of all meetings in full compliance with 1-19(a), G.S.

2. Based upon the finding at paragraph 10, above, and the conclusion at paragraph 18, above, the Commission declines to impose civil penalties or issue an order declaring any actions of the respondent Commission null and void. However, in view of the violation found in FIC # 1996-54, as noticed at paragraph 14, above, and the violation found in the present docket, the Commission notes that if an emerging pattern of violations indicating a casual approach to FOI requirements is confirmed in the future, it could lead to the imposition of sanctions, including civil penalties.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 1997.

_________________________
Doris V. Luetjen
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:
Fairfield Resources Management, Inc. and Rock Acquisition Limited Partnership
c/o Timothy J. Lee, Esq.
Leonard A. Fasano, Esq.
Fasano & Ippolito
388 Orange Street
New Haven, CT. 06511

Stanley Kurpiewski, Chairman, Inland Wetlands Commission, Town of Brookfield; John Smoliga, as a member of the Inland Wetlands Commission, Town of Brookfield; and Inland Wetlands Commission, Town of Brookfield
c/o William J. McNamara, Jr., Esq.
57 North Street - Suite 214
Danbury, CT. 06810

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-056FD/mes/10031997