FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Durham Rod & Gun Club, Inc.,

 

                                Complainant

 

                against                   Docket #FIC 95-42

 

Durham Planning and Zoning Commission

and Durham Zoning Board of Appeals,

 

                                Respondents                        January 24, 1996

 

                The above-captioned matter was heard as a contested case on September 19 and November 3, 1995, at which times 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.  The respondents are public agencies within the meaning of 1-18a(a), G.S.

 

                2.  By two letters each dated January 19, 1995, the complainant requested that the respondent Planning and Zoning Commission (hereinafter "P&Z") provide it with:  (1) a certified copy of the tape of a March 16, 1988 P&Z hearing or, in the alternative, access to the original tape; and (2) a certified copy of the transcript of such hearing.

 

                3.  By two letters each dated January 19, 1995, the complainant requested that the respondent Zoning Board of Appeals (hereinafter "ZBA") provide it with:  (1) a certified copy of the tape of a July 14, 1994 ZBA hearing or, in the alternative, access to the original tape; and (2) a certified copy of the transcript of such hearing.

 

                4.  By letter dated February 15, 1995 and filed February 21, 1995, the complainant appealed to the Commission and alleged that the respondents failed to comply with its requests.  Additionally, the complainant requested that the Commission declare the actions taken by the respondent ZBA with respect to the complainant at its February 9, 1995 meeting null and void.

 

#FIC 95-42                                             Page 2

 

                5.  It is found that the requested hearing tapes are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                6.  It is found that both respondents maintain their records in the office of the town clerk.

 

                7.  At the hearing on this matter, the respondents claimed that the complainant's request should have been addressed to the town clerk and that they cannot be ordered to produce records not in their custody.

 

                8.  It is found, however, that the requested records are the respondent's records despite their physical custody by the town clerk, and are still subject to the jurisdiction and control of the respondents.

 

                9.  With respect to the respondent P&Z, it is found that it did not initially respond to the complainant's request, but approximately two weeks later, in response to a phone call from the complainant's counsel, the respondent P&Z's administrator provided the complainant with an uncertified copy of the requested tape for a fee of $15.00.

 

                10.  Section 1-15(a), G.S., provides, in pertinent part:

 

                "Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

 

                11.  It is found that the respondent P&Z failed to provide the complainant with a certified copy of the tape, as requested, and it is concluded that the respondent P&Z thereby violated 1-15(a), G.S.

 

                12.  It is further found that the respondent P&Z could and should have provided the respondent with access to the original tape, and it is concluded that its failure to do so constitutes a violation of 1-19(a), G.S.

 

                13.  It is found that a transcript of the hearing requested from the respondent P&Z did not exist at the time of the complainant's request, and the respondent P&Z contends that it was not required to create one for the complainant.

 

                14.  It is further found, however, that the respondent P&Z's administrator created a transcript of the March 16, 1988 hearing for the town's zoning enforcement officer prior to the respondent ZBA's February 9, 1995 meeting; and that at such meeting the zoning enforcement officer provided the complainant with a copy of the requested transcript.

 

#FIC 95-42                                             Page 3

 

                15.  Section 1-15(a)(2), G.S., provides, in pertinent part:

 

                "If any copy provided in accordance with said sections requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency.  (Emphasis added.)

 

                16.  It is concluded that the respondent P&Z's failure to transcribe the hearing in response to the complainant's request constitutes a violation of 1-15(a)(2), G.S.; and its failure to promptly provide the complainant with a copy of the transcription violated the provisions of 1-15(a), G.S.

 

                17.  With respect to the respondent ZBA, it is found that it failed to provide the complainant with either the requested transcript; or access to or a copy of the requested tape.

 

                18.  It is found that the respondent ZBA denied the complainant's requests because the July 14, 1994 meeting at issue had been declared null and void due to an error in notice.

 

                19.  It is found that the respondent ZBA supplied the complainant with a copy of the agenda and minutes of the July 14, 1994 meeting, but that such records were not responsive to the complainant's request.

 

                20.  It is further found that the minutes provided contain a handwritten disclaimer stating:  "Meeting VOID/Error in noticing."

 

                21.  It is found, however, that any subsequent action with respect to the July 14, 1994 meeting does not alter the character of the tape of such meeting as a public record, and that access to or a copy of the tape could have been provided with the same disclaimer that accompanied the meeting minutes.

 

                22.  It is concluded that by failing to provide the complainant with either a transcript; or access to or a copy of the original tape of the July 14, 1994 meeting, the respondent ZBA violated the provisions of 1-15(a), 1-15(a)(2), and 1-19(a), G.S.

 

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

 

#FIC 95-42                                             Page 4

 

                1.  The respondent P&Z shall forthwith provide the complainant with access to the original tape of its March 16, 1988 meeting or a certified copy of the same.  Due to the possibility of subsequent alteration of the tape, the certification provided may indicate that the content of the tape is only certified as accurate until such time as it is provided.

 

                2.  The respondent ZBA shall forthwith provide the complainant with (a) a transcript of its July 14, 1994 meeting; and (b) access to the original tape or a certified copy of the same.  The transcript provided in accordance with this order may be accompanied by a notice indicating that the subject meeting was subsequently declared null and void.

 

                3.  Henceforth, the respondents shall strictly comply with the requirements of 1-15(a), 1-15(a)(2), and 1-19(a), G.S.

 

                4.  The respondents are hereby ordered to attend a workshop to be conducted at the Commission's office at 18-20 Trinity Street, Hartford, CT.  The respondents are ordered to contact the Commission within one week of the receipt of the final decision in this matter to schedule such workshop.

 

                5.  The Commission, in its discretion, declines to order the February 9, 1995 meeting of the respondent ZBA null and void.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-42                                               Page 5

 

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:

Durham Rod & Gun Club, Inc.

c/o Serge G. Mihaly, Esq.

Mihaly & Kascak

925 White Plains Road

Trumbull, CT 06611

 

Durham Planning and Zoning Commission and Durham Zoning Board of Appeals

c/o Vincent T. McManus, Jr.

116 South Main STreet

Walllingford, CT 06492

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission