FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Robert Kalechman,  
  Complainant  
  against   Docket #FIC 2009-177

Performing Arts Center Board,

Town of Simsbury,

 
  Respondent

March 10, 2010

       

 

The above-captioned matter was heard as a contested case on June 29, 2009, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A report of hearing officer was issued on September 2, 2009 dismissing the complaint; however, the Commission, at its regular meeting of September 23, 2009, voted to amend the report and issued a final decision incorporating the amendment at its regular meeting on October 28, 2009.  Subsequent to the Commission’s October 28, 2009 regular meeting, the respondent moved to reopen the matter for the purpose of presenting evidence.  Such motion was granted and the reopened hearing was heard on February 8, 2010, at which time the complainant 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 1-200(1), G.S.

 

2.  By letter dated March 27, 2009 and filed with the Commission on March 30, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by “neglecting to post their meeting minutes and the agendas.”  The complainant also alleged that the respondent “list[s] on the town agenda the meeting, time and date and the minutes never appear of these meetings.”  The complainant further alleged that he received a web page containing the error, “404 page not found, reference error code 1081”, in place of particular minutes and agendas, when trying to access such records on the Town of Simsbury’s website.

 

3.  At the hearing in this matter, the complainant alleged that the respondent failed to record in its minutes the discussion and vote on whether the respondent should recommend that the Simsbury Board of Selectmen apply for a permit to allow the Reach Foundation to sell alcohol during a performance at the Simsbury Performance Arts Center at Simsbury Meadows (hereinafter “the Center”).  The complainant also alleged that the respondent held “secret meetings, meetings over the phone, and meetings in hallways,” in violation of the FOI Act.  The complainant further alleged that the respondent failed to respond to his letter addressed to the Simsbury First Selectman, requesting the names of persons who received forty complimentary tickets and seating at five tables for performances held at the Center.

 

4  Section 1-225, G.S., provides in relevant part:

 

(a)  Within seven days of the session of which such minutes refer, such minutes shall be available for public inspection and posted on such public agency's Internet web site, if available... (c)  The agenda of the regular meetings of every public agency.… shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer… in such agency's regular office or place of business, and… in the office of the [town] clerk …. (d)  Notice of each special meeting of every public agency…. shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency's Internet web site, if available, and given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the…[town] clerk….The notice shall specify the time and place of the special meeting and the business to be transacted…..

 

5.  With respect to the allegations described in paragraph 3, above, it is found that these matters were not fairly raised in the complaint in this case and therefore the Commission shall not further address them herein.

 

            6.  As to the complainant’s claim that the respondent neglects to post minutes and agendas on the Town of Simsbury’s website, the complainant specifically claimed that he was unable to access the minutes of the respondent’s June 1, 2009 special meeting within the statutory time required under the FOI Act.  The Commission notes that such meeting occurred after the filing of the complaint in this matter.

 

7.  Accordingly, the Commission shall not further address allegations pertaining to the respondent’s June 1, 2009 special meeting, as described in paragraph 6, above.

 

8.  The complainant also claimed that the respondent neglected to post minutes for its November 19, 2008 special meeting.

 

9.  The respondent contends that the Commission lacks subject matter jurisdiction with respect to its November 19, 2008 special meeting, since a complaint was not timely filed by December 19, 2008, pertaining to such meeting.

 

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

 

[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held….

 

11.  With respect to the respondent’s November 19, 2008 special meeting, it is found that while the respondent posted draft minutes of such meeting on its website on December 9, 2008, the respondent failed to post the minutes within seven days of the special meeting.

 

12.  It is also found that the notice of appeal in this matter was filed more than thirty days after the denial of the right alleged in paragraph 8, above, within the meaning of 1-206, G.S.  Accordingly, it is concluded that the Commission lacks subject matter jurisdiction with respect to the November 19, 2008 special meeting.

 

13.  It is found that there is no evidence that the respondent neglected to post the agendas and minutes of any other meetings prior to the filing of the complaint in this matter.

 

14.  It is therefore concluded that the respondent did not violate the FOI Act by neglecting to post their minutes and agendas, as alleged in the complaint.

 

 

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 March 10, 2010.

 

____________________________

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:

 

Robert Kalechman

971 Hopmeadow Street

Simsbury, CT 06070

 

Performing Arts Center Board,

Town of Simsbury

c/o Robert M. DeCrescenzo, Esq.

Updike, Kelly & Spellacy, P.C.

One State Street

PO Box 231277

Hartford, CT 06123-1277

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-177FD2/paj/3/11/2010