FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
W. David Zitzkat,  
  Complainant  
  against   Docket #FIC 2004-303

Chairman, Open Space Preservation

Commission, Town of New Hartford;

and Open Space Preservation

Commission, Town of New Hartford,

 
  Respondents June 22, 2005
       

 

The above-captioned matter was heard as a contested case on November 1, 2004, at which time the complainant and the respondents 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.      It is found that the respondents are public agencies within the meaning of 1-200(a), G.S.

 

2.      It is found that the town of New Hartford (hereinafter “the town”) set out to preserve approximately 30% of the land in New Hartford as open space.  It is also found that in furtherance of that goal, the town planned to purchase the development rights from property owners who own 20 acres, or more, of land.

 

3.      It is found that the purpose of the respondent commission is to evaluate all eligible property and to advise the town regarding purchase of any, or all of the development rights to such property.

 

4.      It is found that as part of the respondent commission’s process of evaluation, it has contacted a number of eligible property owners to determine if they were interested in selling their development rights, and the purchase price of such rights.  

 

5.      It is found that the respondent commission has held discussions in executive session regarding:

a.       the acquisition of development rights from certain eligible property owners, which discussions included the names of property owners;

b.      the details of the discussions with certain property owners;

c.       the price for the development rights of certain parcels of property;

d.      the location of such property; and

e.       the development rights of certain property it determined, from its evaluations, the town should purchase.

 

6.      It is found that the town purchased the development rights from one owner of approximately 30 acres upon the advice and recommendation of the respondent commission.

 

7.      By letter dated June 26, 2004, the complainant made a request to the respondent chairman for access to inspect certain records which included:

 

a.       “a list of property owners with whom negotiations for purchase of their development rights had already begun or with whom negotiations are about to begin; and

 

b.      minutes of all meetings at which the purchase of specific properties has been discussed.  This includes written documents, computer stored documents, or documents stored on audio or any other media whatsoever.”

It is found that these are the only records at issue in this case.

 

8.      By letter dated June 30, 2004, the respondents acknowledged receipt of the complainant’s June 26, 2004 request and informed him that he would be advised when the information was compiled for his inspection.

 

9.      By letter dated July 7, 2004 and filed on July 9, 2004, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his records request.

 

10.   It is found that by letter dated July 9, 2004, the respondent informed the complainant that pursuant to 1-200(6)(D) and 1-210(b)(7), G.S., the respondent commission was not required to disclose ongoing negotiations with respect to real estate transactions and that the specific properties were discussed only in executive session and therefore no minutes exist.

 

11.   Section 1-210(a), G.S., provides in relevant part that: 

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

12.   Section 1-212(a), G.S., provides in relevant that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.” 

 

13.   It is found that the requested records, to the extent that such records exist, are public records within the meaning of 1-210(a), G.S.

 

14.   At the hearing on this matter, the complainant argued that the respondent convened in executive session for an impermissible purpose because 1-200(6)(D), G.S., applies only to real estate and the conveyance of land and not development rights.  The complainant also argued that even if 1-200(6)(D), G.S., applied to development rights, the respondent had an affirmative duty to show that the publicity regarding the sale or purchase of the development would cause the price for such rights to increase.

 

15.   It is found that the allegation, described in paragraph 14, above, was not fairly raised in the complainant’s July 7, 2005 letter of complaint nor did the complainant amend his letter of complaint to include said allegation. 

 

16.  Consequently, it is concluded that this Commission lacks subject matter jurisdiction regarding the allegation described in paragraph 14, above, and it will not be addressed herein.  

 

17.  With respect to the complainant’s records request described in paragraph 7a, above, it is found that the respondents do not maintain such a list. 

 

18.  It is found, however, that the respondent maintains records that contain the information requested in paragraph 7a, above, however, it is concluded that such records constitute evaluations made for or by an agency relative to the acquisition of property within the meaning of 1-210(b)(7), G.S., and are permissibly exempt from disclosure. 

 

19.  With respect to the complainant’s records request described in paragraph 7b, above, it is found that the minutes of any such meeting at which the respondent went into executive session to discuss the purchase of specific properties would have recorded the date and time of the meeting, the vote to go into executive session, the purpose of the executive session and the names of the individuals who attended the executive session.

 

20.   It is found that had the respondent provided the complainant with the minutes described in paragraph 19, above, they would have strictly complied with the disclosure provision of the FOI Act, but also would have engaged in an exercise in futility because the minutes would not have disclosed the information that the complainant was truly seeking which was the names and addresses of those property owners the respondents were either considering to negotiate, or were already negotiating, with to buy the development rights to their land. 

 

21.   Nonetheless it is concluded that the respondents violated 1-210(a) and 1-212(a), G.S., by failing to provide the complainant with copies of the minutes described in paragraph 19, above.

 

 

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

 

1.      The respondents shall forthwith provide the complainant with a copy of the minutes of any and all meetings at which they discussed the purchase of specific properties in executive session, free of charge.

 

2.      Henceforth the respondent shall strictly comply with the disclosure provision of 1-210(a) or 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 22, 2005.

 

________________________________

Petrea A. Jones

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:

 

W. David Zitzkat

999 Asylum Avenue, Suite 502

Hartford, CT 06105

 

Chairman, Open Space Preservation

Commission, Town of New Hartford;

and Open Space Preservation

Commission, Town of New Hartford

c/o Charles E. Roraback, Esq.

24 Mason Street

PO Box 925

Torrington, CT 06790

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-303FD/paj/6/23/2005