FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 9, 2005, at which time the complainant and the respondent 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.  By letter of complaint filed January 5, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to file notices or make minutes of meetings that were held between March and July of 2004.  The complainant alleged that he was not aware of any of the alleged meetings until January 3, 2005.

 

2.  It is found that the complainant learned on January 3, 2005, from a member of the respondent, that the respondent had conducted meetings on March 31 and April 14, 2004, and possibly at other times in roughly the same time period.  The complainant was not able to find minutes, notices or agendas of any of those meetings at the Bethel Town Clerk’s Office.

 

3.  Section 1-206(b)(1) provides in relevant part:

 

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. 

 

4.  Section 1-200(2), G.S., provides in relevant part:

 

“Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. 

 

5.  Section 1-225(d), G.S., provides in relevant part:

 

Notice of each special meeting of every public agency … 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 clerk of such subdivision for any public agency of a political subdivision of the state ….  The secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting…. 

 

6.  Section 1-225(a), G.S., provides in relevant part that the minutes of the meetings of public agencies “shall be available for public inspection within seven days of the session to which they refer.”

 

7.  It is found that the Town of Bethel Board of Selectmen met on April 20, 2004 and, on the motion of the First Selectman, voted to appoint ten members of the respondent. 

 

8.  It is also found that, before the formal appointment of the respondent’s members by the Board of Selectmen, First Selectman Alice Hutchinson met with the respondent’s two co-chairs, sometime prior to March 11, 2004, to define the central focus of the respondent.  The three individuals decided that the respondent’s work would concentrate on examining ways the Town of Bethel could “implement the statutes and regulations concerning affordable housing to foster good planning practices,” and discussing “potential modifications to the statutes … to foster good planning practices.”

 

9.  It is also found that all ten members of the respondent, together with the First Selectman, met on March 31, 2004, before formal appointment of its members on April 20, 2004, to discuss the respondent’s purpose,  Connecticut’s affordable housing law generally, and the standards a town must meet in order to be exempt from affordable housing appeals procedures.  The meeting was chaired by the First Selectman.

 

10.  It is also found that nine members of the respondent, together with the First Selectman, met again on April 14, 2004, also before the members’ formal appointment, to create five subcommittees to study the various aspects of affordable housing issues in Bethel.  Members of the respondent volunteered to serve on the subcommittees.  This meeting was again chaired by the First Selectman.

 

11.  The respondent acknowledges that it did not file notices or keep minutes of its March 31 and April 14, 2004 meetings, although it subsequently created memoranda which record the proceedings of those two meetings, and is willing to have the memoranda filed as minutes with the Town Clerk of Bethel.

 

12.  The respondent maintains that the March 31 and April 14, 2004 meetings were not meetings subject to the FOI Act, because the meetings were only preliminary.

 

13.  Although not framed by the respondent as an issue of subject matter jurisdiction, the Commission  on its own motion necessarily raises the issue of whether the respondent was a public agency within the meaning of §1-200(1), G.S.,  before its members were formally appointed by the Board of Selectmen on April 20, 2004.

 

14.  Section 1-200(1), G.S., provides in relevant part:

 

“Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222.

 

15.  It is found that the respondent was created by the Bethel Board of Selectmen on April 20, 2004, and not by the First Selectman on the earlier dates that the respondent convened for organizational purposes. 

 

16.  In Docket #FIC 1997-427, Nick Fortunato v. District 12 Delegation, Greenwich Representative Town Meeting, et al., the Commission concluded that the members-elect to a representative town meeting were not public agencies before taking office, and that therefore their organizational meeting to select members to standing committees, held before the members-elect took office, was not subject to the FOI Act.

 

17.  It is found that neither the members of the respondent in participating in the organizational meetings, the First Selectman in organizing those meetings, nor the Bethel Board of Selectmen in acquiescing to those meetings, intended to circumvent FOI Act requirements.  Rather, it is inferred from the evidence on the record that the respondent and the First Selectman sought to be prepared to conduct business by the time the respondent’s members were appointed on April 20, 2004.

 

18.  It is concluded that the respondent was not a public agency before the appointment of its members by the Board of Selectmen on April 20, 2004, and therefore did not violate the FOI Act when it met on March 31 and April 14, 2004.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The complaint is dismissed.

 

            2.  The Commission appreciates the respondent’s assurances that it will comply with the applicable provisions of the FOI Act in the future, its willingness to file the memoranda of its March 31 and April 14, 2004 meetings as minutes, and the representations by counsel that the respondent has arranged for a representative of the FOI Commission to conduct an educational session on June 9, 2005.

 

3.  The First Selectman is strongly encouraged to attend the June 9, 2005 educational workshop.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 2005.

 

________________________________

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:

 

Robert Z. Crnic

45 Old Hawleyville Road

Bethel, CT 06801

 

Affordable Housing Task Force,

Town of Bethel

c/o Martin J. Lawlor, Jr., Esq.

99 Greenwood Avenue

Bethel, CT 06801

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-008FD/paj/7/19/2005