FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
William Comerford,  
  Complainant  
  against   Docket #FIC 2009-103
Stephen P. Nere, Executive Director, Housing
Authority, Town of Wallingford; Robert
Prentice, Chairman, Housing Authority, Town
of Wallingford; and Board of Commissioners,
Housing Authority, Town of Wallingford,
 
  Respondents September 23, 2009
       

 

The above-captioned matter was heard as a contested case on July 24, 2009, at which time the complainant and 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.   The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.      By letter dated and filed on February 25, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       preventing him from videotaping the January 22, 2009 meeting of the Town of Wallingford Housing Authority; and

 

b.      failing to provide him with a copy of the audio recording for such meeting.

 

The complainant requested the imposition of civil penalties against the named respondents.

 

3.      It is found that the respondents conducted a meeting on January 22, 2009 (the “January 22nd meeting”).

 

4.      Section 1-206(b)(1), G.S., provides, in relevant part:

 

Any person denied the right to inspect or copy records…or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act 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 not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held.

 

5.      It is found that the January 22nd meeting, at which the complainant alleges that the respondents violated the meetings provisions of the FOI Act, occurred more than 30 days before the filing of this complaint.  It is further found that such meeting was neither secret nor unnoticed, and that the complainant attended such meeting.

 

6.      It is concluded that the Commission lacks subject matter jurisdiction to address the allegation, described in paragraph 2.a, above, pursuant to 1-206(b)(1), G.S.

 

7.      It is found that, by letter dated January 27, 2009, the complainant made a request to the respondents for “a copy of the audio recording of the Wallingford Housing Authority meeting on January 22, 2009… [and]…audio tapes of the two prior Wallingford [H]ousing Authority meetings.”

 

8.      Section 1-200(5), G.S., defines “public records or files” as:

 

any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

9.      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 . . . or (3) receive a copy of such records in accordance with section 1-212.

 

10.  The respondents contend that the requested records are not the respondents’ records but those of the recording secretary, and are therefore, not “public records.”

 

11.    It is found that the recording secretary is not a public official or a public employee, but rather an independent contractor whom the respondents hired to prepare the minutes of their meetings.

 

12.  It is found that the respondents do not have a policy governing, or a contract setting forth, the duties of the recording secretary.  It is further found that the respondents do not specify or otherwise direct the means and methods by which the recording secretary must compose the meeting minutes. 

 

13.  It is found that the recording secretary, on her own accord, decided to audiotape the respondents’ meetings in order to assist her in composing accurate minutes.  It is also found that the respondents do not own or store such audiotapes or taping equipment. 

 

14.  It is found that the audiotapes, described in paragraphs 2.b and 7, above, are records of the recording secretary who provides a service to the respondents.

 

15.  It is found that the requested records, to the extent they exist, are not records “prepared, owned, used, received or retained” by the respondents, within the meaning of 1-200(5), G.S.  It is further found that the requested records are not “maintained or kept on file” by the respondents, within the meaning of 1-210(a), G.S.

 

16.  It is therefore concluded that the requested records are not “public records” within the meaning of 1-200(5) and 1-210(a), G.S.  See Docket #FIC 1996-518; Jeffrey W. Burkitt and Ansonia Republican Town Committee v. Board of Aldermen, Town of Ansonia (Aug. 27, 1997); Docket #FIC 1992-073; William L. Kuusela v. Daniel W. Teper, Lisbon First Selectman (Sept. 9, 1992) (audiotapes used by secretaries to assist in preparing minutes under similar facts are not “public records”). 

 

17.  The Commission notes that the audiotape of the January 22nd meeting, described in paragraph 2.b, above, was destroyed in the normal course of business by the recording secretary on January 26, 2009.

 

18.  There is no basis for the imposition of a civil penalty in this matter.

 

 

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.

                                   

 

 

 

 

 

                       

Approved by Order of the Freedom of Information Commission at its regular meeting of September 23, 2009.

 

 

____________________________

S. Wilson

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 Comerford 

5 Broadview Drive

Wallingford, CT 06492

 

Stephen P. Nere, Executive Director, Housing Authority, Town of Wallingford; Robert Prentice, Chairman, Housing Authority, Town of Wallingford; and Board of Commissioners, Housing Authority, Town of Wallingford

C/o E. James  Loughlin, Esq.

Loughlin Fitzgerald PC

150 South Main Street

Wallingford, CT 06492

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-103FD/sw/9/25/2009