FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Anthony M. D’Angelo, | |||
| Complainant | |||
| against | Docket #FIC 2005-054 | ||
|
Board of Commissioners, Lake Zoar Authority, |
|||
| Respondent | January 25, 2006 | ||
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. By letter dated February 7, 2005, and filed on February 9, 2005, and supplemented by letter dated April 22, 2005, and filed on April 26, 2005, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act on February 1, 2005 by:
a. denying him access to the records described in paragraph 3, below; and
b. improperly convening in executive session.
The complainant requested the imposition of a civil penalty in this matter.
3. With respect to the allegation described in paragraph 2a above, it is found that during the respondent’s regular monthly meeting held on February 1, 2005, (hereinafter “February 1, 2005 meeting”) the complainant, requested in writing that the respondent provide him with the Lake Zoar Authority’s (“LZA”):
a. 2004 complete Certified Public Accountant’s prepared
record of all monies received and spent (hereinafter
“audit”); and
b. the 2004 ledger showing all checking disbursements and deposits.
(hereinafter “requested records”)
4. It is found that, by letter dated February 2, 2005 the chairman of the respondent informed the complainant that, “we have not yet received our 2004 audit from our accountant. We will provide access as soon as we receive it. You may make an appointment to review the records, and we will provide copies of records that you are willing to pay for at the rate of fifty cents per page payable in advance”.
5. It is found that, by letter dated February 8, 2005, the complainant complained to the First Selectman of the town of Southbury regarding the failure of the respondent to provide the complainant with access to the requested records.[1] In his February 8, 2005 letter to the First Selectman, and again in his testimony at the hearing in this matter, the complainant indicated that the 2004 audit was available, and presented to the respondent during the February 1, 2005 meeting, and that although multiple copies of such audit were available at the meeting, he was unable to obtain one. At the hearing in this matter, the respondent did not present any evidence to refute the complainant’s testimony that the 2004 audit was presented to the respondent during the February 1, 2005 meeting. No members of the respondent appeared and testified at the hearing in this matter. It is therefore found that the 2004 audit existed, and that the respondent was presented with such audit on February 1, 2005.
6. It is also found that the 2004 ledger existed as of February 1, 2005, and that the respondent chairman in his letter to the complainant dated February 2, 2005 and described in paragraph 4, above, asked the complainant to make an appointment to review such records. It is found that shortly after receiving the February 2, 2005 response, the complainant telephoned Mr. Paul Gallichotte, the Newtown representative who serves on the respondent, and left him a message on his answering machine regarding being provided access to review the 2004 ledger. It is found that neither the respondent nor anyone on its behalf responded to the complainant’s voice message or followed-up regarding the complainant’s records request.
7. The respondent’s position with respect to the complaint in this matter is that the complainant is a disgruntled former member of the respondent who was asked to resign, and did so in late 2004. The respondent’s position with respect to the requested records is that: a) the complainant failed to make an appointment as he was told to do, and b) the complainant did not want to pay the copy fee of fifty cents per page, but wanted such fee waived.
8. Section 1-200(5), G.S., defines “public records or files” to mean: “[a]ny recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method”.
9. Section 1-210(a), G.S., further 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 (1) inspect such records promptly during regular office or business hours …or (3) receive a copy of such records in accordance with section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 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…. [Emphasis added].
10. Section 1-212(a), G.S., provides that: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record”. Section 1-212(a), G.S., further provides that a municipal agency may charge a fee not exceeding fifty cents per page for copies of public records.
11. Section 1-212(c), G.S., also provides that: “[A] public agency may require the prepayment of any fee required or permitted under the … [FOI] Act if such fee is estimated to be ten dollars or more”.
12. It is concluded that the 2004 audit and ledger at issue are “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.
13. It is found that the LZA does not maintain a “regular office or place of business” where the public records of such authority are kept and may be accessed by the public, within the meaning of §1-210(a), G.S. It is also found that the LZA’s records are not kept “in the office of the clerk of the political subdivision in which such public agency is located”, within the meaning of §1-210(a), G.S. It is also found that the LZA does not have a hired full-time staff, except for the clerk of the authority, but is manned by volunteers.
14. It is concluded that the respondent violated §1-210(a), G.S., by failing to maintain the LZA’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 the appropriate clerk’s office, within the meaning of §1-210(a), G.S.
15. It is further concluded that the respondent violated §1-210(a), G.S., by failing to provide the complainant with prompt access to inspect the requested records and by requiring him to make an appointment. Requiring an appointment to access public records is an illegal precondition on the rights of access granted by §1-210(a), G.S. Such precondition conflicts with, and “diminishes” the rights granted by such provision.
16. It is further concluded that, pursuant to §§1-212(a) and 1-212(c), G.S., the respondent is within its rights to charge the complainant up to fifty cents per page for copies of public records, and may request prepayment if the total fee for the copies being provided amount to ten dollars or more.
17. It is further concluded that pursuant to §1-212(d)(3), G.S., the respondent may determine if “in its judgment, compliance with the …[complainant’s] request benefits the general welfare”, and if so, to waive copy fees.
18. With respect to the allegation concerning executive session described in paragraph 2b above, it is found that during the February 1, 2005 meeting the respondent convened in executive session (hereinafter “executive session”).
19. Section 1-225(a), G.S., provides, in relevant part: “[T]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. The votes of each member of any such 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….”
20. Section 1-200(6), G.S., provides that:
“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.
21. Section 1-225(f), G.S., provides: “[A] public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200”.
22. Section 1-231(a), G.S., further provides that:
At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.
23. At the hearing in this matter, the respondent did not present any evidence refuting the testimony of the complainant regarding the executive session.
24. It is found that the respondent failed to prove that it obtained a two-thirds vote of its members prior to convening in the executive session and therefore violated §1-225(f), G.S.
25. It is also found that the respondent failed to prove that the discussion conducted during the executive session was for a purpose/s permitted by §1-200(6), G.S.
26. At the hearing in this matter, counsel for the respondent suggested that the respondent’s discussion during the executive session regarding hiring police to patrol Lake Zoar constituted a discussion of a personnel matter and qualified for an executive session discussion within the meaning of §1-200(6)(A), G.S. In addition, in his brief, counsel for the respondent contended that the discussion regarding the hiring of police to patrol Lake Zoar constituted a discussion of a matter concerning security strategy or the deployment of security personnel within the meaning of §1-200(6)(C), G.S.
27. It is found however, that the respondent failed to provide any evidence, and therefore failed to prove, that the discussion in executive session concerning the hiring of police was a discussion that qualified for an executive session, within the meaning of §§1-200(6)(A) and/or (C), G.S.
28. It is also found that the respondent failed to prove that during the executive session it did not discuss and reach a consensus on matters including, repairing and dewinterizing boats. It is therefore found that the respondent did discuss such matters and arrived at a concensus, which consensus is tantamount to taking a vote during the executive session.
29. It is also found that the respondent failed to prove that all persons who attended the executive session, except members of the respondent, were in attendance solely for the period of time “necessary to present testimony or opinion” as required by §1-231(a), G.S.
30. It is therefore concluded that the respondent violated the executive session provisions of the FOI Act as well as the open meeting provisions §1-225(a), G.S., when it discussed matters during the executive session which should have been discussed during the public session, when it conducted vote/s during such session and when it permitted non-members of the respondent to remain in the executive session beyond the period of time necessary to present testimony or opinion.
31. In addition to the minutes requirement set forth in §1-225(a), G.S., referenced in paragraph 19 above, §1-210(a), G.S., requires that: “[E]ach …[public] agency shall make, keep and maintain a record of the proceedings of its meetings”.
32. It is found that the respondent failed to record in its February 1, 2005 minutes that it convened in executive session.
33. The Commission in its discretion declines to consider the imposition of a civil penalty in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall permit the complainant access to review the requested audit and ledger. If the complainant wishes to have a copy of such records the respondent may charge up to fifty cents per page for such copy.
2. In keeping with the requirement of §1-210(a), G.S., that public records must be maintained and accessible to the public during regular office or business hours, the respondent shall forthwith, either: a) designate a place as its “regular office or place of business”, and specify regular hours when such office or place of business is open to the public, or b) keep the LZA’s records in the office of the clerk of the political subdivision in which the LZA is located.
3. Forthwith, the respondent shall amend the February 1, 2005 minutes to: a) reflect that it convened in executive session, b) disclose the nature of the discussions conducted during the executive session, and c) disclose all persons who were in attendance at such executive session.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 25, 2006.
________________________________
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:
Anthony M. D’Angelo
18 Cedarhurst Trail
Sandy Hook, CT 06482-1437
Board of Commissioners,
Lake Zoar Authority
c/o Monte E. Frank, Esq.
158 Deer Hill Avenue
Danbury, CT 06810
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-054FD/paj/1/26/2006