FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on July 10, 2006, 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.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed March 30, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by keeping its records locked in the town clerk’s office, and by failing to comply with various requirements concerning agendas, minutes, records of vote, and the schedule of its regular meetings.   

 

            3.  It is found that on March 1, 2006 the complainant asked to see all of the respondent’s records for the period 2001-2004.  It is found that the complainant was given access to all of the responsive records that are maintained by the respondent, although, as noted below, the complainant contends that the records are incomplete or otherwise not in compliance with §1-225, G.S.

 

4.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any 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.

 

5.  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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

6.  It is found that the records inspected by the complainant are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

7.  At the hearing, the complainant contended that the respondent unreasonably delayed his access to the records, because the town clerk could not immediately locate the key.  No evidence was presented suggesting that the delay in locating the key, which the town clerk has custody of, was anything other than inadvertent.

 

8.  In any event, the complainant raised the issue of promptness for the first time at the hearing on this matter.  The complaint itself does not allege a lack of promptness, but merely states, in relevant part:

 

 On March first, 2006 I asked to see all of the records from the board of assessment appeals from 2001-2004.  The records were locked up in the town clerk’s office but she did not have the keys to the files.  The keys were held in the assessor’s office and she got the keys and opened up the files.

 

9.  It is therefore concluded that the issue of promptness was not fairly raised in the complaint, and the Commission declines to address it. 

 

10.  In his complaint, the complainant alleges that he found no records of the votes conducted at the respondent’s meetings.

 

11.  Section 1-225(a), G.S., provides:

 

The 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, which minutes shall be available for public inspection within seven days of the session to which they refer.

 

12.  Because the testimony of the witnesses for each party differed as to the existence and form of these records of votes, the hearing officer ordered each party to submit, as after-filed exhibits, examples of the records that each claimed either did or did not satisfy the requirements contained in §1-225(a), G.S.

 

13.  It is found that the respondent conducted meetings to hear, review and deliberate on tax appeals in March and September of 2001, 2002, 2003 and 2004.

 

14.  The Commission has previously found that the respondent in 2002 maintained records of its votes in individual appeal packages, consisting of the taxpayer’s application, supporting documentation, notification on the outcome of the appeal and the votes taken on the appeal by the respondent.  Linsley v. Board of Assessment Appeals, Town of Wallingford, docket #FIC 2002-132, at paragraphs 37 and 41.  Although the Commission concluded that the respondent had failed to create, maintain and make available minutes of its meetings, it did not conclude that the respondent’s practice of keeping records of votes in individual appeal packages violated §1-225(a), G.S.

 

15.  It is found that the respondent has continued to maintain the records of its votes in the individual appeal packages, and has additionally created and maintained minutes that reflect its record of votes.

 

16.  Although the complainant alleged that the respondent maintained no records of vote, and additionally testified at the hearing that he was not given any records of vote, it is found that the complainant’s own after-filed exhibits contain minutes of the respondent’s meetings that contain the record of the respondent’s vote on each individual assessment appeal it heard at that meeting.  Additionally, the respondent’s after-filed exhibits demonstrate that records of vote are also kept in the individual appeal packages.

 

17.  It is concluded that the respondent did not violate §1-225(a), G.S., with respect to maintaining records of its votes.

 

18.  The complainant also alleges in his complaint that the minutes of the respondent’s meetings “were not time stamped for filing by the town clerk in whose office they are kept.”

 

19.  It is concluded that the portion of the complaint pertaining to the time-stamping of the respondent’s minutes does not allege a violation of the FOI Act.

 

20.  The complainant also alleges in his complaint that, in reviewing the respondent’s records, he “found many violations of [§1-225, G.S.] which requires an agenda for its meetings.”

 

21.  It is found, however, as reflected by the respondent’s after-filed exhibits, that the respondent posted notices of its 2002, 2003, and 2004 meetings, although copies of those agendas were apparently maintained by the town clerk’s office, and not by the respondent.  While the respondent may have failed to maintain copies of these agendas in compliance with the appropriate records retention schedule, any such failure does not constitute a violation of the FOI Act. 

 

22.  The complainant also alleges that the respondent violated §1-225(d), G.S., by adding business to the agenda of its March 9, 2006 special meeting.  Specifically, the complainant alleges that “item 42” was omitted from the agenda, and added as new business.

 

23.  Section 1-225(d), G.S., provides in relevant part: “The notice [of a special meeting] shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency.” 

 

24.  It is found that the notice of the respondent’s March 9, 2006 meeting listed the tax appeals of 42 property owners and locations, numbered 41 through 82, but omitting property owner number 42.

 

25.  It is found that the omission of property owner number 42 was inadvertent, and that his appeal was added to the business actually transacted at the March 9, 2006 special meeting.  It is also found that when the respondent discovered that it has taken up the matter of the appeal of property number 42 after omitting it from the agenda, it placed the matter on the notice of its March 20, 2006 special meeting, and re-heard the matter at that time.

 

26.  It is concluded that the respondent technically violated §1-225(d), G.S., by adding “other business” to the agenda of its March 9, 2006 meeting.  However, the violation was inadvertent and was immediately cured, and no order is deemed necessary with regard to it.

 

27.  The complainant also alleges that the respondent violated §1-225(d), G.S., by listing on its March 8, March 9, March 11, March 13, March 14, and March 15, 2006 agendas the following item, which the complainant contends is imprecise:

 

2.                  Consent agenda – Technical changes recommended

by Assessor

 

2A.  Vote on consent agenda.

 

28.  However, it is found that the respondent took up no business under this item at any of the meetings on March 8, 9, 11, 13, 14 or 15, 2006.  It is also found that the only time the respondent did take up business under the described item, on March 20, 2006, it listed the item on its agenda by specifically naming property owners, and describing the property addresses and the amount of the recommended change in assessment.

 

29.  It is concluded that the respondent did not violate the requirements of §1-225(d), G.S., with respect to the specificity of its March, 2006 agendas.

 

30.  The complainant also alleges that the respondent violated §1-225(b), G.S., by failing to file a schedule of its regular meetings for 2001-2004.

 

31.  Section 1-225(b), G.S., provides in relevant part:

 

The chairperson or secretary of any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. 

 

32.  It is found that the respondent held no regular meetings in 2001-2004.  Rather, the respondent held a number of special meetings for the purpose of hearing tax assessment appeals in March and September.

 

33.  The complainant nonetheless contends that §1-225(a), G.S., requires the respondent to file a schedule of regular meetings, whether it intends to hold regular meetings or not, citing docket #FIC 2000-377, Alan C Schmoll v. School Building Committee, Town of Hamden.

 

34.  In  Schmoll, above, the Commission concluded that:

 

… the mandatory language of §1-225(a), G.S., requires the filing of a “schedule of regular meetings.”  It is also concluded that whereas §1-225(a), G.S., permits adding “subsequent business” to a regular meeting agenda, it expressly bars such addition in the case of “special meetings.” … Further, the fact that a public agency does not actually meet (for whatever legitimate reason) on a date previously designated as a regular meeting date, in no way relieves such agency of the requirement of filing a “schedule of regular meetings.”  Such schedule would indicate to the public the date the agency proposes to meet, and will in fact meet, if it has business to conduct when such dates arrive.  [Emphasis in original.]

 

35.  Although the conclusion cited above appears to provide authority for the complainant’s argument, the respondent in Schmoll intended to and actually conducted what purported to be regular meetings, at which the agency added items of business to its agenda, as permitted in regular, but not special, meetings.  The respondent in the instant case did not claim to, or intend to, conduct regular meetings, and did not attempt to add new items of business to the agenda of its special meetings.

 

36.  It is concluded that it is not reasonable to require an agency to file a schedule of regular meetings when it does not propose to hold any, and the Commission declines to interpret Schmoll to require such a result.

 

37.  It is concluded that the respondent did not violate §1-225(a), G.S., by failing to file a schedule of regular meetings.

 

38.  However, the Commission nonetheless urges the respondent, if possible, to file a schedule of regular meetings, as such a schedule would provide additional advance notice to the public as to when the respondent proposes to consider tax assessment appeals in the current year.

 

39.  The complainant also alleges that the assessor was permitted to speak at the respondent’s meetings without being named on the agenda, while members of the public were not permitted to speak.

 

40.  It is concluded that the portion of the complaint pertaining to who was permitted to speak at the respondent’s meetings does not allege a violation of the FOI Act.

 

 

            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.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 2007.

 

________________________________

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:

 

Gary Linsley

520 Ward Street Ext.

Wallingford, CT 06492

 

Board of Assessment Appeals,

Town of Wallingford

c/o Janis M. Small, Esq.

Town of Wallingford

45 South Main Street

Wallingford, CT 06492

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-147FD/paj/3/19/2007