FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Complainant |
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against |
Docket # FIC 2000-235 |
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Nelson Defreitas,
Chairman, Police |
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Respondents |
February 14, 2001 |
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The above-captioned matter was heard as a contested case on November 15, 2000, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with Docket #FIC 2000-239; Michael Daubert v. Nelson DeFreitas, Chairman, Police Commission, Borough of Naugatuck; Ronald Gallant; Annette Woodfield; William Rado; George Errico; Carlos Batista, as members, Police Commission, Borough of Naugatuck; and Police Commission, Borough of Naugatuck [hereinafter “Docket #FIC2000-239”].
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The Commission takes administrative notice of the record and final decision in Docket #FIC 2000-239.
2. The respondent commission is a public agency within the meaning of §1-200(1), G.S.
3. By letter dated May 9, 2000, and filed with the Commission on May 11, 2000, the complainant alleged that the respondent commission violated the Freedom of Information [hereinafter “FOI”] Act by conducting the following unnoticed meetings, and by failing to file minutes of such meetings with the Naugatuck Borough Clerk: June 4, 1997; June 11, 1997; June 16, 1997; June 23, 1997; July 10, 1997; July 17, 1997; July 24, 1997; July 31, 1997; August 11,1997; September 10, 1997; September 29, 1997; October 16, 1997; October 20, 1997; November 6, 1997; and November 11, 1997. By such letter, the complainant alleged that she became aware of such allegedly unnoticed meetings after a review of the minutes of the respondent commission. The complainant requested that the actions of the respondent commission taken at such meetings be declared null and void and that the named respondents be assessed civil penalties.
4. Section 1-225(a), G.S., provides in relevant part that:
…The votes of each member of any…public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer….Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency….
5. Section 1-206(b)(1), G.S., provides in relevant part that:
Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.
(Emphasis added).
6. With respect to the allegation of improper notice of meetings, at the hearing in this matter, the complainant contended that she became aware of the alleged notice deficiencies described in paragraph 3, above, shortly before filing the complaint herein and that, therefore, the Commission has jurisdiction to determine whether the respondent commission violated the notice provisions of the FOI Act.
7. It is concluded that, pursuant to §1-206(b)(1), G.S., it is the date at which a complainant receives notice in fact that a meeting is held which controls the jurisdictional issue
8. It is found that the respondent commission held the meetings as described in paragraph 3, above. It is further found that the respondent commission contemporaneously made available minutes of such meetings and that such minutes have been in existence and on file since 1997.
9. Based upon the findings in paragraph 8, above, it is found that the complainant has had notice in fact that the meetings described in paragraph 3, above, occurred since 1997. The complaint in this matter was filed on May 11, 2000, more than two years later. Accordingly, the Commission lacks subject matter jurisdiction over the allegations that the meetings described in paragraph 3, above, were not properly noticed.
10. With respect to the allegation that the minutes of the meetings in question were not filed with the Naugatuck Borough Clerk, §1-210(a), G.S., provides in pertinent part that:
…Each such 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 or of the Secretary of the State, as the case may be….
11. It is concluded that, pursuant to §1-210(a), G.S., there is no requirement to file minutes with the clerk, unless the respondent commission does not have a regular office or place of business. It is also concluded that the Commission has subject matter jurisdiction over the issue of the failure to properly file minutes as such allegation, if proven, would constitute a continuing violation on the part of the respondents.
12. It is found that the respondent commission keeps a regular office or place of business within the meaning of §1-210(a), G.S., at the Naugatuck police department.
13. It is therefore concluded that the respondents did not violate the FOI Act by failing to file the minutes of the meetings described in paragraph 3, above, with the Naugatuck Borough Clerk.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. The complainant is advised that, if the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.
3. The complainant is advised that use of the Commission’s ombudsman program can often avoid the need for costly and time-consuming administrative hearings.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 14, 2001.
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Petrea A. Jones
Acting Clerk of the Commission
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:
Maureen Fama
94 North State Street
Ansonia, CT 06401
Nelson Defreitas,
Chairman, Police
Commission, Borough
of Naugatuck;
Ronald Gallant,
Annette Woodfield,
William Rado,
George Errico, Carlos
Batista, as
Members, Police Commission,
Borough of
Naugatuck; and Police
Commission, Borough of Naugatuck,
c/o M. Leonard Caine III, Esq.
35 Porter Avenue
Naugatuck, CT 06770
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-235/FD/paj/02/15/2001