FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final
Decision
Daniel F. O’Connor,
Complainant,
against Docket
#FIC 95-332
Kathy Neth, Clerk, Candlewood Isle Tax
District; Ellen Berk, John Lavagnini; Francine
Leniston; Robert Maloney; Linda Shine-Wise;
Jerry Ryan; Edward Asvazadourian; Don Torre
and Candlewood Island Tax District, Board of
Directors,
Respondent August
28, 1996
The above-captioned matter was heard as a
contested case on May 21 and July 2, 1996, at which times the complainant and
the respondents appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
Docket #s FIC 1995-312 Kathy Neth, Clerk, Candlewood Isle Tax
District; Ellen Berk, John Lavagnini; Francine Leniston; Robert Maloney; Linda
Shine-Wise; Jerry Ryan; Edward Asvazadourian; Don Torre and Candlewood Island
Tax District, Board of Directors and FIC 1995-373 Kathy Neth, Clerk,
Candlewood Isle Tax District, were consolidated with the above-captioned
case for purpose of hearing.
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 letter of complaint dated September
25, 1995 and filed with the Commission on October 2, 1995, the complainant
indicated that this complaint is a follow-up to complaint docket # FIC 1995-312
and appealed to the Commission alleging that the respondents violated the
Freedom of Information (“FOI”) Act by:
a. denying him prompt access to inspect and to
copy records;
b. failing to maintain an office; and
Docket
#FIC 1995-332 Page
2
c. holding a secret meeting at which the decision to purchase a refrigerator was
made.
3. The complainant requested in his letter
of complaint that the Commission impose civil penalties upon the respondents.
4. At the May 21, 1995 hearing into this
matter, the respondents filed a motion to dismiss for lack of subject matter
jurisdiction on the basis that the Commission did not hear this appeal within
thirty days of its receipt.
5. Section 1-21i(b)(i), G. S., provides in
relevant part that:
Said [FOI] commission
shall, after due notice to the parties, hear
and decide the appeal within one year after the filing of the notice of appeal. The [FOI] Commission shall adopt regulations
in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for
hearing. Any such appeal shall
be heard within thirty days after receipt of a notice of appeal and decided
within sixty days after the hearing.
[Emphases added.]
6. It is found that this appeal was filed
on October 2, 1995 and was not privileged in its assignment for hearing.
7. Consequently, it is concluded that the
Commission has jurisdiction to hear and decide this appeal within one year of
October 2, 1995. The respondent’s motion to dismiss is therefore, denied.
8. With
respect to the allegation described in paragraph 2a. above, it is found that by
letters dated August 7 and 22, 1995 the complainant requested that the
respondent clerk provide him with access to inspect and copy eleven categories
of records (hereinafter “requested record items #1 through 11”).
9. It is found that after several
communications between the complainant and the respondent clerk, the
respondents provided the complainant with access to inspect and copy the
requested record items # 1, 2, 3, 4, 5 (the volume and page number), 6, 8, 9
and 10 on or after November 10, 1995.
Docket
#FIC 1995-332 Page
3
10. It is found that the respondents do not
maintain any records responsive to requested record items #s 7 and 11.
11. It is concluded that the requested record
items provided to the complainant, and as described in paragraph 9, above, are
public records within the meaning of §§1-18a(d)
and 1-19(a), G.S.
12. It is concluded that the respondents
provision of access on or after November 10, 1995, and as described in
paragraph 9, above, was not prompt, and therefore the respondents violated §§1-15
and 1-19(a), G.S.
13. With respect to the allegation, as
described in paragraph 2b. above, it is found that at the time the complaint
was brought, the respondent board did not maintain a “regular office or place
of business” where the public records of the district could be inspected, nor
was there available “an office of the clerk of the political subdivision in
which such public agency is located”, within the meaning of §1-19(a),
G.S.
14. Section 1-19(a), G,S., provides in
relevant that “every person shall have the right to inspect such [public]
records promptly during regular office
or business hours or to receive a copy in accordance with the
provisions of section 1-15.”
15. Section 1-19(a), G.S., in relevant part
further provides that:
Each such [public]
agency shall keep and maintain all public records in its custody at its regular
office or place of business in an accessible place and, if there is no such
office or place of business, the public records pertaining to such agency shall
be kept in the office of the clerk of the political subdivision in which such
public agency is located….
16. It is found that the Candlewood Island
Taxing District (“district’) is a political subdivision and the respondent
agencies are located within that political subdivision.
17. It is found that some of the district’s
records are kept at a community center, which is closed during the winter, some
by the bookkeeper at her home, and some by the respondent clerk at her home.
Docket
#FIC 1995-332 Page
4
18.
It is found that the respondent clerk does not
maintain an office which is accessible to the public where the public can
inspect records promptly.
19. It is concluded that the respondents
violated §1-19(a),
G.S., by failing to maintain the district’s public records in its custody at
either a regular office or place of business in an accessible place, or to
maintain such records in an accessible office of the respondent clerk.
20. With respect to the allegation, as
described in paragraph 2c. above, it is found that the respondent did not hold
a secret meeting.
21. It is therefore concluded that the
respondents did not violate the meeting provisions of §1-21(a),
G.S.
22. The Commission in its discretion declines
to impose civil penalties in this matter.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The
respondents shall forthwith, and in accordance with §1-19(a),
G.S., arrange to;
(a)
either designate an accessible office or place of business of the
district and cause all of the district’s public records to be located there,
such office to be open to the public during regular office hours held and
posted at such designated location, or
(b) maintain the district’s public records at an
accessible office of the respondent clerk.
2. The respondent board shall provide
the Commission with an affidavit attesting to the placement of all of the
district’s public records in accordance with the provisions of paragraph 1 of
this order, above, within forty-five days of the date of the mailing of the
notice of the final decision in this matter.
Docket
#FIC 1995-332 Page
5
Approved by Order of the Freedom of Information
Commission at its regular meeting of August 28, 1996.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket # FIC 1995-332 Page
6
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:
Daniel F. O’Connor
7 Peter Cooper Road
New York, New York 10010
Kathy Neth, Clerk, Candlewood Isle Tax District;
Ellen Berk, John Lavagnini; Francine
Leniston; Robert Maloney; Linda Shine-Wise;
Jerry Ryan; Edward Asvazadourian; Don Torre; and Candlewood Island Tax
District, Board of Directors,
c/o Francis
J. Collins, Esq.
148
Deer Hill Avenue
P.O.
Box 440
Danbury,
CT 06810
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission