FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

H. Richard Borer, Sr.,

Complainant

against Docket #FIC 87-219

West Haven Planning & Zoning Commission,

Respondent December 9, 1987

The above-captioned matter was heard as a contested case on August 28, 1987, 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:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. By letter dated July 28, 1987 the complainant made a request of the city planner for the respondent for copies of the following:

a. A copy of the site plan for the solid waste expansion project;

b. A list of the conditions, terms and stipulations between the petitioner and the respondent concerning the solid waste expansion project;

c. A copy of the letter referred to by the respondent at its July 17, 1987 meeting, received from the Department of Environmental Protection;

d. A copy of the respondent's minutes from May 1987 through July 1987.

e. The reason for rejecting the solid waste petition considered on May 12, 1987; and

f. The reason for accepting the solid waste petition considered on July 17, 1987.

Docket #FIC 87-219 Page 2

3. From denial of access to the information identified at paragraph 2, above, the complainant appealed to the Commission by complaint filed on August 4, 1987. The complainant also alleged in his letter of complaint that the respondent failed to give proper notice of its July 17, 1987 meeting in the newspaper and did not allow public participation at this meeting, in violation of the Freedom of Information Act.

4. Also in his letter of complaint, the complainant alleged that on July 24, 1987 he made a request of the respondent to make a copy of the tape recording of its July 17, 1987 meeting and was not permitted to do so.

5. The complainant requested the imposition of a civil penalty against the respondent.

6. With respect to the document identified at paragraph 2a, above, at the hearing the respondent stated that it would provide the complainant with a copy of the site plan.

7. The respondent further stated that the dimensions of the site plan being sought are approximately 2 feet by 3 feet and that the complainant would either have to pay the cost to have it reproduced by an outside company or receive a copy of the map in sections.

8. With respect to the document identified at paragraph 2b, above, it is found that no list was compiled by the respondent of these conditions. The only document that contains the terms and stipulations entered into by the respondent and the petitioner concerning the solid waste project is the tape recorded minutes of the respondent's July 17, 1987 meeting, which have been transcribed.

9. With respect to the document identified at paragraph 2c, above, it is found that the complainant made a request for a copy of the letter that "could not be located at the July 17, 1987 meeting," but was referred to by the respondent during its discussion of the solid waste project.

10. It is found that the respondent read a letter aloud at the hearing in question that it received from the Department of Environmental Protection and that no other letter exists.

Docket #FIC 87-219 Page 3

11. With respect to the documents identified at paragraph 2d, above, the respondent concedes that its minutes were not filed within the time period mandated by the Freedom of Information Act. The respondent explained that its secretary was on vacation and that is why the minutes were not timely filed.

12. It is concluded that the respondent violated §1-21(a), G.S., when it failed to timely file and make available the minutes from May 1987 through July 1987.

13. The Commission notes, however, that the absence of a secretary does not justify the unavailability of its minutes from May 1987 through July 1987. The Freedom of Information Act requirements must be complied with at all times despite staff absences.

14. With respect to the requests referred to in paragraphs 2e and 2f, above, it is found that there are no written records containing the reasons for acceptance or rejection of the respective solid waste petitions, as required by law.

15. With respect to the complainant's allegation that the respondent failed to give proper notice of its meeting in the newspaper, it is found that there are no provisions under the Freedom of Information Act that require a public agency to publish notice of its meetings in a newspaper.

16. Consequently, the Commission lacks jurisdiction over that portion of the complaint which alleges that the notice placed in the newspaper was improper.

17. It is found, however, that the notice filed with the town clerk of the respondent's July 17, 1987 meeting referred to it as a "special regular meeting."

18. It is also found that the respondent's regular meetings are held on the second and fourth Tuesday of the month, and that the meeting in question took place on a Friday.

19. It is therefore concluded that the respondent's July 17, 1987 meeting was a "special meeting" and should have been identified as such.

20. With respect to the complainant's allegation that he was not allowed to speak at the respondent's public hearing on July 17, 1987 it is found that there are no provisions under the Freedom of Information Act governing the conduct of public hearings.

Docket #FIC 87-219 Page 4

21. It is also found that at the public hearing in question, the complainant became disruptive and had to be ejected from the hearing by the respondent.

22. It is concluded that the respondent did not violate any provision of the Freedom of Information Act when it did not allow the complainant to speak and ejected him from the public hearing due to his disruptive demeanor.

23. With respect to the complainant's allegation that he was not allowed to tape record the minutes of the respondent's July 17, 1987 meeting, it is found that the complainant wanted to take the respondent's tape and make his own copy.

24. It is also found that the respondent has instituted a new policy which prohibits members of the public from handling its tapes. If a member of the public wants a copy of a tape, it must be made by a member of the respondent's staff.

25. It is found that nothing in the policy employed by the respondent concerning the duplication of tapes violates the requirements of the Freedom of Information Act.

26. It is therefore concluded that the complainant was not denied access to public records within the meaning of §1-19(a), G.S.

27. The Commission declines to impose a civil penalty against the respondent as requested by the complainant.

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

1. The respondent shall provide the complainant with a copy of the documents more fully described in paragraphs 2a and 2d of the findings above.

2. Henceforth the respondent shall act in strict compliance with the requirements of §1-21(a), G.S.

Approved by order of the Freedom of Information Commission at its special meeting of December 9, 1987.

Catherine H. Lynch

Acting Clerk of the Commission