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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Kenneth W. Simonds, |
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Complainants |
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against |
Docket #FIC 2001-039 | |
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President, Fall Mt. Lake |
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Respondents |
September 12, 2001 | |
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The above-captioned matter was heard as a contested case on July 16, 2001, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that, by letter dated January 11, 2001, the complainant requested that the respondents provide him with copies of several records relating to the respondent association.
3. It is found that the board of directors of the respondent association held a special meeting on January 16, 2001, [hereinafter “the meeting”] and that the complainant did not receive written notice of such meeting at his home.
4. By letter dated January 17, 2001, and filed with the Commission on January 22, 2001, the complainant alleged that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by failing to promptly provide him with copies of the records described in paragraph 2, above, and by failing to mail notice of the meeting to his home. The complainant requested the imposition of civil penalties in this matter.
5. With respect to the allegation concerning lack of meeting notice, §1-225(d), G.S. provides in relevant part that “…written notice [of special meetings of public agencies] shall be delivered to the usual place of abode of each member of the public agency so that the same is received prior to such special meeting….”
6. It is found that the complainant is a member of the respondent association but that he is not a member of the board of directors of the respondent association.
7. It is concluded that the respondents were not required to deliver written notice of the meeting to the home of the complainant, within the meaning of §§1-225(d), G.S., and it is therefore further concluded that the respondents did not violate the FOI Act by failing to do so, as alleged in the complaint.
8. With respect to the allegation concerning failure to provide copies of records, §1-210(a), G.S., provides in relevant part that:
[e]xcept 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…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….
9. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record….”
10. At the hearing in this matter, the complainant acknowledged that the respondents had provided him with copies of, or access to, several of the records that he requested after the filing of the complaint in this matter; however, the complainant contended that other records had not been provided to him. Specifically, the complainant contended that copies of the following requested records were not provided to him:
a) tapes of monthly meetings of the respondent association from January 1999 through November 2000;
b) an itemized list of all income to the respondent association for the years 1995 through November 2000;
c) an itemized list of all expenditures of the respondent association for the years 1995 through November 2000;
d) all signed documentation regarding the respondent association’s community house; and
e) the original three estimates received for the respondent association’s beach fencing project.
11. It is found that the respondents did not provide the complainant with copies of the records described in paragraph 10, above.
12. It is also found that the respondents are not required to create records in order to comply with the request described in paragraphs 2 and 10, above. It is further found, however, that all records that the respondents keep on file or maintain are public records within the meaning of §§1-210(a) and 1-212(a), G.S.
13. It is found that the regular place of business of the respondents is the community house located at Fall Mt. Lake.
14. At the hearing in this matter, the complainant acknowledged that the most recent president of the respondent association has been cooperative and helpful in compiling records for the complainant’s review. However, it is also found that the respondents do not keep and maintain all public records in their custody at their regular place of business in an accessible place. Specifically, it is further found that various current members of the board of directors of the respondent association keep on file or maintain records of the respondent association in their homes, and that such directors have thus far refused to bring such records to the community house.
15. It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., as alleged in the complaint.
16. At this time, the Commission declines to impose civil penalties against the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. Forthwith, the respondent president and individual board members described in paragraph 14 of the findings, above, shall retrieve all records of the respondent association and ensure that such records are kept on file in the community house described in paragraph 13 of the findings, above. Upon receipt of such records, the respondent president and such members shall review them to determine if any such records are responsive to the request described in paragraphs 2 and 10 of the findings, above.
2. After the review described in paragraph 1 of the order, above, the individuals described therein shall forthwith provide copies of any responsive records to the complainant. If such review yields no responsive records, such individuals shall so inform the complainant by affidavit forthwith.
3. The respondents shall provide a copy of this decision to each member of the board of directors of the respondent association.
4. The board of directors of the respondent association is advised that, pursuant to §1-206(b)(2), G.S., upon a finding that a denial of any right created by the FOI Act was without reasonable grounds, the commission may, in its discretion, impose against the custodian or other official directly responsible a civil penalty of not less than twenty dollars nor more than one thousand dollars.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 12, 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:
Kenneth W. Simonds
115 Fall Mt. Lake Road
Terryville, CT 06786
President, Fall Mt. Lake
Property Owners Association
48 Eastview Road
Terryville, CT 06788
Fall Mt. Lake Property
Owners Association
c/o Mark D. Malley, Esq.
30 Main Street, PO Box 487
Thomaston, CT 06787
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-039/FD/paj/09/17/2001