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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Raymond Lafferty, |
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Complainants |
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against |
Docket #FIC 2000-526 |
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Chairperson, Planning
and Zoning |
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Respondents |
June 27, 2001 |
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The above-captioned matter was heard as a contested case on March 29, 2001, at which time the complainant and the respondent appeared, 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 respondent is a public
agency within the meaning of §1-200(1),
G.S.
2. It is found that by certified
letter dated August 24, 2000, the complainant requested that the respondent
provide him with copies of “the file, including but not limited to
complaints, notes, memoranda, letters, reports, inter office notes, letters or
memoranda, telephone notes or memoranda, records, minutes of meetings or
conferences, advisory opinions or reports, or inspections, or copy of notes,
letters or directives to Mr. Tarascio, the zoning [enforcement] officer or any
other zoning officer or official concerning:
a)
a Cease & Desist Order dated April
26, 2000 and containing a date of service of April 25, 2000, a copy of which
is attached;
b)
a Cease & Desist Order dated
September 16, 1997, a copy of which is attached; and
c)
any other complaint or discussion by
the commissioners of Mr. Raymond Lafferty or the premises located at 127
Pinesbridge Road, Beacon Falls, Ct”
(hereinafter
“requested records”). The
complainant requested that sanctions be imposed upon the respondent because of
repeated violations.
3. Having failed to receive a
response, the complainant appealed to the Commission by letter dated September 18, 2000 and filed on September 20, 2000, alleging
that the respondent violated the Freedom of Information (“FOI”) Act by
denying him a copy of the requested records.
4. Section
1-210(a), G.S., provides, in relevant part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.
5. It is found that the address
to which the complainant’s records request was sent is the correct address
at which the respondent receives mail. It
is also found that the request was signed for as “received” by the First
Selectman’s secretary on August 25, 2000, and apparently placed in the
respondent’s mail folder. It is
found however, that the respondent did not become aware of the request until
the regular meeting of the Planning and Zoning (“P&Z”) commission held
on September 21, 2000.
6. It is found that by letter
dated September 25, 2000 the respondent informed the complainant that she had
not received the request until the regular meeting, apologized for the delay
in responding, informed him that the Zoning Enforcement Officer (“ZEO”)
keeps files regarding Cease & Desist Orders (“Orders”), that she would
review minutes of the P&Z commission to determine if the complainant’s
name was mentioned, and that her review with respect to the April 26, 2000
Order should be completed by the end of October, 2000, however, that her
review regarding the September 1997 Order would require more effort and time,
and finally that there would be a charge of 50 cents per page for any copies
provided.
7. It is also found that by letter dated October 16, 2000 the respondent provided the complainant with a copy of the ZEO report for the month of April, 2000, and informed him that her review regarding the September 1997 Order should be completed by the middle of November, 2000.
8. It is found that upon completion of her review of records for the period January 1997 through December 1999, the respondent, by letter dated November 17, 2000 provided the complainant with copies of pages from minutes of the P&Z commission meetings of June 19, July 17 and October 16, 1997, and copies of the ZEO report for September 18 and October 16, 1997, in which Mr. Lafferty’s name was mentioned.
9. It is further found that by
letter dated November 27, 2000, counsel for the respondent (in order to
supplement the respondent’s responses described in paragraphs 6, 7 and 8,
above) provided the complainant with fifteen copies of photos and a note that
are responsive to the complainant’s request.
10. It is concluded that the
records described in paragraphs 7, 8 and 9, above, are “public records”
within the meaning of §1-210(a), G.S.
11. It is also concluded that the
records described in paragraphs 7, 8 and 9, above, provided to the complainant
by the respondent two and three months, respectively, from the date of the
complainant’s August 24, 2000 request, were not provided “promptly”
within the meaning of §1-210(a), G.S.
12. It is therefore concluded
that the respondent violated the promptness provision of §1-210(a), G.S., by
failing to provide the complainant with the records described in paragraphs 7,
8 and 9, above, promptly.
13. With respect to the complainant’s contention that the respondent repeatedly violated the FOI Act, the Commission takes administrative notice of the Final Decision in contested case docket #FIC 2000-325, Raymond Lafferty v. Zoning Enforcement Officer, Town of Beacon Falls; and Town of Beacon Falls, (hereinafter “FIC 2000-325)].
14. It is found that the ZEO report for the month of April, 2000, described in paragraph 7, above, as well as the photographs and note, described in paragraph 9, above, existed at the time of the complainant’s September 5, 2000 hearing before this Commission in FIC 2000-325, however, based on the findings in FIC 2000-325, the existence of those records was not revealed to the FOI Commission by the ZEO or counsel for the ZEO at the time of that hearing. Consequently, it appears that the evidence presented at the hearing in FIC 2000-325, with respect to the existence of records was false and at best incomplete. It is also found that the ZEO is no longer employed by the town.
15. It is found based on the evidence presented in this case, that the respondent has thoroughly searched her records and has in good faith provided to the complainant all records she maintains that are responsive to the request that is the subject of this hearing. It is also found that the respondent was neither a party nor a participant at the hearing in FIC 2000-325. It is therefore concluded that a civil penalty against the respondent in this case, for what was apparently misleading evidence by the ZEO in FIC 2000-325, is not appropriate.
16. It is further found that there is no evidence that the respondent has a record that contains the identity of the individual who filed the complaints that led to the cease and desist orders being issued.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the promptness provision of the FOI Act.
2. Forthwith, the respondent shall implement a system whereby FOI requests are reviewed and fulfilled “promptly”, thereby avoiding, as in this case, the one month delay during which the respondent was not aware of the complainant’s request.
3. The Commission encourages both the complainant and the respondent to exercise their best efforts to lessen the noticeable tension and hostility between the parties.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 27, 2001.
_________________________________________
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:
Raymond Lafferty
c/o Serge Mihaly, Esq.
Mihaly and Kascak
925 White Plains Road
Trumbull, CT 06611
Chairperson, Planning and Zoning
Commission, Town of Beacon Falls
c/o Laura M. Mooney, Esq.
203 Church Street, PO Box 702
Naugatuck, CT 06770
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2000-526/FD/paj/06/28/2001