FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Stan Greenbaum,

Complainant

against Docket #FIC 86-29

Kent Zoning Enforcement Officer, Kent Planning & Zoning Commission and the Town of Kent,

Respondents March 26, 1986

The above-captioned matter was heard as a contested case on February 19, 1986, at which time it was continued to March 6, 1986. On March 6, 1986 the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. On or about May 16, 1985 the respondent commission issued a notice of violation which indicated that certain conditions on the complainant's property did not conform to Kent zoning ordinances. The notice was based upon a complaint made by one of the complainant's neighbors, George Karcher. A subsequent dispute between the complainant and Mr. Karcher led to the complainant's filing of a lawsuit against Mr. Karcher.

3. Following the issuance of the notice, the complainant requested and received certain records relating to the alleged violation.

4. On January 19, 1986 the complainant made a request of the respondent commission for 16 additional records relating to the alleged violation, some of which had been previously requested from the respondent zoning enforcement officer. On January 29, 1986 the respondent zoning enforcement officer provided most of the documents requested.

5. By letter of complaint filed with the Commission on January 31, 1986 the complainant alleged that the respondent commission failed to provide the following records:

Docket #FIC 86-29 Page Two

a. Copies of two complaints regarding the complainant's property, referred to in a June 5, 1985 letter from the respondent zoning enforcement officer to Attorney Tom Byrne.

b. A copy of a communication to Mr. Byrne informing him that "to date [the complainant] had chosen to ignore the request of the Zoning Enforcement Officer;"

c. Copies of the minutes of the respondent commission's March, April and May, 1985 meetings;

d. A copy of a letter from Mr. Byrne stating that the complainant's property was in compliance with the zoning regulations; and

e. Copies of violation notices allegedly sent to the complainant, as referred to in the minutes of the respondent commission's August 14, 1985 meeting.

6. The complainant requested the imposition of a civil penalty against the respondents.

7. It is found that allegations in the complaint regarding smoking in a public place are not within the jurisdiction of the Commission. It is also found that this Commission lacks jurisdiction, pursuant to 1-21i(b), G.S., over allegations of violations which occurred more than thirty days prior to the filing of the complaint.

8. With respect to paragraph 5(a), above, it is found that the complainant was informed on January 29, 1986 that Mr. Karcher's complaint was oral. No additional written complaint regarding the complainant's property exists.

9. With respect to paragraph 5(b), above, it is found that nothing other than a copy of the notice of violation regarding the complainant's property was sent to Mr. Byrne to notify him of the alleged violation. The complainant was so informed on January 29, 1986.

10. With respect to paragraph 5(c), above, it is found that on January 29, 1986 the respondent zoning enforcement officer presented the complainant with copies of the respondent commission's minutes of March, April and May, 1984 meetings. Upon having the error called to his attention, the respondent zoning enforcement officer provided the complainant with the correct minutes approximately 13 days later.

11.

Docket #FIC 86-29 Page Three

11. It is found that the failure to provide the complainant with the requested minutes on January 29, 1986 was the result of an error. However, an additional delay of 13 days deprived the complainant of prompt access to the minutes, in violation of 1-15, G.S.

12. With respect to paragraph 5(d), above, it is found that the complainant was informed on January 29, 1986 that Mr. Byrne's letter had been lost. The respondent zoning enforcement officer at that time suggested that the complainant contact Mr. Byrne to obtain a copy of the letter.

13. At the time of the complainant's request, the respondents did not have in their possession a copy of Mr. Byrne's letter regarding the complainant's compliance. Shortly prior to hearing, counsel for the respondents obtained a copy of the letter from Mr. Byrne and presented it to the complainant at hearing.

14. It is found, however, that the failure of the respondents to produce a copy of a record that they did not at the time possess did not violate 1-15, G.S.

15. With respect to paragraph 5(e), G.S., it is found that on January 29, 1986 the complainant was informed that references to him in the minutes of August 14, 1985 were in error and that, therefore, such violation notices did not exist.

16. The complainant claims that the respondents' failure to provide records was without reasonable grounds and that such failure had the intended effect of harming the complainant in the prosecution of his lawsuit against Mr. Karcher. The Commission notes, however, that at the time of the complainant's request for the records in question there was no suit pending, the matter between the complainant and Mr. Karcher having been settled.

17. It is found that the respondent zoning enforcement officer does not have access to a photocopying machine and that, due to his full-time employment elsewhere, his office hours are 5:30 p.m. to 8:30 p.m. Mondays and Wednesdays, 7:00 a.m. to 8:30 a.m. Tuesdays and Thursdays and 10:00 a.m. to noon on Saturdays. In order to provide the copies requested the respondent zoning enforcement officer had to gather the records at his office and bring them to the complainant's place of business, where they were copied on the complainant's photocopier.

18. It is found that the respondents' failure to promptly provide the complainant with copies of certain of the respondent commission's minutes was not without reasonable grounds within the meaning of 1-21i(b), G.S. The complainant's request for the imposition of civil penalties, therefore, is denied.

Docket #FIC 86-29 Page Four

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

1. The respondents shall henceforth act in strict compliance with the requirements of 1-15, G.S. regarding the public's right to prompt access to copies of public records.

Approved by order of the Freedom of Information Commission at its regular meeting of March 26, 1986.

ÿ

Karen J. Haggett

Clerk of the Commission