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.
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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