FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 29, 2007, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.      By letter of complaint dated October 28, 2006 and filed November 2, 2006, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by:

 

a.       destroying the tape recording of the July 8, 2006 special meeting of the respondent Cornfield Point Association and thereby denying the complainants access to such tape recording;

 

b.      holding an improper meeting of the Association by telephone in order to schedule resumption of the July 8, 2006 special meeting; and

 

c.       providing “tardy” and “incorrect” copies of records used at the respondent Association’s special meetings of July 8, 2006 and August 26, 2006.

 

3.      Section 1-200(5), G.S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

4.   Section 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 (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.

 

5.   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….” 

 

6.   With respect to the allegation described in paragraph 2.a, above, it is found that the respondents made a tape recording of the July 8, 2006 special meeting of the Cornfield Point Association.  It is further found that such tape recording is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

7.  It is found that the respondent Bilodeau inadvertently recorded over a portion of the recording described in paragraph 6, above, on August 14, 2006.

 

8.       It is found that the complainants requested a copy of the recording described in paragraph 6, above, on August 28, 2006, which was two weeks after the recording had been inadvertently partially erased.

 

9.        It is found that the respondents discovered the taping error in the course of attempting to comply with the complainants’ request for a copy of the tape recording of the July 8, 2006 meeting.

 

10.   It is found that the tape recording of the July 8, 2006 meeting of the respondent Cornfield Point Association was inadvertently partially erased before it became the subject of a request under the FOI Act.

 

11.   Under the facts and circumstances of this case, it is concluded that the issue of public records retention and destruction is properly within the purview of the State Public Records Administrator, pursuant to §11-8a, G.S.

 

12.   It is found that on October 3, 2006, the respondents provided to the complainant a copy of the only portion of the tape recording of the July 8, 2006 meeting that they maintained at the time of the complainants’ August 28, 2006 request.

 

13.  Based on the facts and circumstances of this case, it is concluded that the respondents did not violate the FOI Act with respect to the allegation described in paragraph 2.a, above.                                        

 

14.   With respect to the allegation described in paragraph 2.b, above, that the respondents held a closed and secret meeting by telephone to schedule the resumption of the association’s July 8, 2006 special meeting,  §1-200(2), G.S., defines a meeting as:

 

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  … to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: … communication limited to notice of meetings of any public agency or the agendas thereof.  (Emphasis added.)

 

15.    It is found that the president of the respondent Association telephoned all the board members to determine whether they would be available to attend a special meeting, on August 26, 2006.  It is found that the president chose that date, in part, because the town parliamentarian she preferred would not be available until then.

 

16.   At the hearing in this matter, the complainants claimed that at a previous consolidated hearing in a related case between the parties, Docket #FIC2006-425 and Docket #FIC2006-498, the president of the association testified that she had discussed with each member in a telephone poll the substance of what she wanted to happen at the meeting of August 26, 2006.

 

17.   On its own motion, the Commission makes the relevant testimony of the president of the association in Docket #FIC2006-425 and Docket #FIC2006-498 evidence in this case.

 

18.   Upon review of the tape recording of the consolidated hearing in Docket #FIC2006-425 and 498, it is found that the president testified that she did not discuss anything with board members other than whether they would be able to attend a meeting on August 26, 2006.  It is found that the president testified under cross-examination in that hearing, “I know I didn’t ‘discuss’ the whole thing like you’re intending today.  I didn’t talk about anything other than, ‘Is the August 28 – 26 – date a good time, date for you,’” she stated.

 

19.   It is found that the president testified at the previous hearing, as she did in the subject hearing, that she told at least one board member that she chose that date, in part, because the town parliamentarian she preferred would not be available until then, due to health issues. 

 

20.   It is found that the president and the board members did not discuss a matter over which the respondent association has supervision, control, jurisdiction or advisory power, other than communications limited to notice of meetings of a public agency, all within the meaning of §1-200(2), G.S.

 

21.    It is concluded that the telephone conversations described in paragraph 15, above, were not meetings within the meaning of §1-200(2), G.S.

 

22.    Accordingly, it is concluded that the respondents did not violate the FOI Act with respect to the allegation described in paragraph 2.b, above.

 

23.    With respect to the complainants’ allegation, described in paragraph 2.c, above, that the respondents provided “untimely” and “incorrect” copies of public records used at the respondent Association’s special meetings of July 8, 2006 and August 26, 2006, it is found that on September 14, 2006, the complainants requested, among other items:

 

The actual list used by the Cornfield Point Association on July 8, 2006 to check off members as they entered the meeting… [and]

 

The actual list used by the Cornfield Point Association on August 28, 2006 to check off members as they entered the meeting.

 

24.   It is found that the tax collector of the respondent association had the duty of checking off names of members of the association as they entered the meetings.

 

25.   It is found that two or three other people assisted in the check-off duty, each working from a separate check-off list, resulting in several different check-off lists for each meeting.

 

26.    It is found that, at the conclusion of each meeting of the respondent association, the tax collector customarily takes the check-off lists home and compiles a master list from the several lists used at the meeting.

 

27.   It is found that the original check-off lists and the master lists that the tax collector subsequently compiled are public records within the meaning of  §§1-200(5) and 1-210(a), G.S.

 

28.    It is found that, once the tax collector completes the master list, usually within two to three days, she customarily discards the individual lists used at the meeting.                 

 

29.    It is found that the tax collector followed her customary practice following the meetings of July 8, 2006 and August 26, 2006.

 

30.    It is found that, by the time the complainants requested, on September 15, 2006, the “actual” lists used to check off names at the July 8, 2006 and August 26, 2006 meetings, the tax collector had already compiled the master lists and discarded the “actual” lists used at the meetings.  Therefore, the only public records that were responsive to the request and that the respondents maintained at the time of the complainants’ request were the master lists for the July 8, 2006 and August 26, 2006 meetings.

 

31.    It is found that the respondents did not act in bad faith in destroying the original check-off lists used at the July 8, 2006 and August 26, 2006 meetings or in compiling new master lists to replace the original check-off lists.

 

32.    It is found that on October 3, 2006, the president of the association provided to the complainants the tax collector’s master list for the August 26, 2006 meeting.  It is found that she informed the complainants at that time that she could not locate the list for the July 8, 2006 meeting.

 

33.    It is found that the president of the respondent subsequently located the tax collector’s master list for the July 8, 2006 meeting, and provided the record to the complainants on October 27, 2006.

 

34.    It is found that the respondents failed to provide promptly copies of the records of the master lists of the respondents’ July 8, 2006 meeting and August 26, 2006 meeting.

 

35.    Accordingly, it is concluded that the respondents violated the promptness provisions of §§1-210(a) and 1-212(a), G.S., with respect to the records described in paragraphs 2.c and 34, above.

 

36.   It is found that, upon learning that the complainants were dissatisfied with the August 26, 2006 master list that they received, the president of the association subsequently created a second master list that she believed would be easier to understand.

 

37.    It is found that on October 27, 2006 the president provided the complainants with a copy of the second master list for the August 26, 2006 meeting that she created.  It is found that there is a discrepancy between the two master lists for the August 26, 2006 meeting as to the number of people checked off.  It is found that the first master list indicated that 94 households were represented at the meeting; the second master list indicated that 96 households were represented at the meeting.

 

38.   With respect to the complainants’ allegation described in paragraph 2.c, above, that the respondents provided “incorrect” copies of records, it is found that the respondents did not alter the August 26, 2006 master list.  Instead, the respondent president created a second master list, in an effort to satisfy the complainants.  Unfortunately, such second list contained an error.

 

39.    It is found that the accuracy of the information contained in the copies of the records provided to the complainants in this matter is not within the Commission’s purview.  See FIC #2000-261, Dante DeLoreto v. Chief of Police, Police Department, Town of Wethersfield.

 

40.    Accordingly, it is concluded that the respondents did not violate the FOI Act with respect to the allegation, described in paragraph 2.c, above, that they provided “inaccurate” copies of records to the complainants.

 

41.    The Commission declines to consider the imposition of civil penalties in this matter.            

 

 

 

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

 

1.      Henceforth, the respondents shall strictly comply with the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 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:

 

Susan H. Case, Robert R. Coty,

Catherine B. Dangona, Lycurgus M.

Davey, Terry Donovan, James Downey,

Gregory H. Gernhardt, Peter Kalousdian,

Abdul Khaliq, Mujeeb Khalique,

Barbara J. Masters, Henry W. Nozko, Jr.,

Mary Smith and Ronald Tenay

c/o Terry Donovan, Esq. and

Jeremiah Donovan, Esq.

PO Box 554

Old Saybrook, CT 06475

                                   

 

Paula Satmary, President, Board of Governors,

Cornfield Point Association; Lewis Perry,

Vice-President, Board of Governors,

Cornfield Point Association; Gloria Bilodeau,

Secretary, Board of Governors,

Cornfield Point Association; Donald Olivieri,

Treasurer, Board of Governors,

Cornfield Point Association; Ken Anderson,

Donald Brewer, Joanne Civitillo, Cathryn Flanagan,

Tedd Levy, Donald Ranaudo, as members,

Board of Governors, Cornfield Point Association;

and Board of Governors, Cornfield Point Association

c/o Kenneth H. Antin, Esq.

Poliner, Poliner, Antin & Cienava Rocco, PC

516 Main Street

Middletown, CT 06457-3355

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-571FD/paj/10/26/2007