FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 9, 2007, at which time the complainant and 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.      It is found that DYMAR, an engineering and development company, is involved in a building project to build a 15,000 square foot commercial building in the town of Newtown (hereinafter the “Berkshire Plaza project”) and submitted an application for such building project to the town’s Planning and Zoning Commission (“P&Z”).

 

3.      It is found that by letter dated October 13, 2006, the complainant submitted a request to the respondent, the Newtown First Selectman, and the zoning coordinator of the Newtown Zoning Board of Appeals, for:

 

all correspondence/reviews, by or to any town official or representative on any media device regarding updated drawings for the subject in question.  More specifically associated with the revisions dated 9-20-2006 made to the “Drawings” by DYMAR of Southbury CT and submitted as a package presented at the Oct. 5, 2006 planning and zoning meeting.

4.      It is found that by letters dated October 13 and October 26, 2006, respectively, the first selectman and the zoning coordinator responded to the complainant and indicated that they did not maintain the records he requested.

 

5.      It is found that, by letter dated October 16, 2006, the respondent informed the complainant that he had been provided with access to review the entire file several times and had also been provided with a copy of all the records maintained therein.

 

6.      It is found, however, that by letter dated October 24, 2006, the complainant challenged the respondent’s implication that he had reviewed and been provided with a copy of the new drawings submitted by DYMAR and made his request again for a copy of “all correspondence/reviews, by or to any town official or representative” regarding the new drawings for the Berkshire Plaza project.  The complainant also requested

 

all information regarding correspondence/reviews on any aspect of the town’s and DOT’s approval or disapproval that have, or may occur since the closing of the public hearing  [on] 10-19-2006 on any aspect affecting the 146-148 plans, prior to discussion and voting.

 

7.      By letter dated November 6, 2006 and filed on November 9, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his October 13 and 24, 2006 requests.  The complainant also alleged that certain records related to the Berkshire Plaza project are missing from the P&Z’s file, and that the closing of the application on the project denied the applicant, and the public, the opportunity to submit further input regarding it. 

 

8.      Section 1-200(5), G.S., provides in relevant part that:

 

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.

 

9.      Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

10.   It is found that the records maintained by the respondent that relate to the Berkshire Plaza project are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11.   At the hearing on this matter, the complainant explained that, while not precisely articulated in his October letters of request, he was seeking a copy of any correspondence between any town official, DOT, and DYMAR regarding the new drawings submitted by DYMAR.

 

12.   Also at the hearing on this matter, the complainant, who is involved in a legal action with respect to certain aspects of the Berkshire Plaza project, asserted that the court file for his legal action contains records that are not in the P&Z’s file and alleges that certain records are therefore “missing” from the town’s file. 

 

13.   With respect to the allegation that records are missing from the P&Z’s file on the Berkshire Plaza project, it is found that the P&Z, as part of its practice and policy, maintains all records related to any one application in its own file folder and maintains all application file folders in one location.  It is found that with respect to the application for the Berkshire Plaza project, all records related to that application are maintained in one file folder in one location.

 

14.   It is also found that the P&Z is not a party in the legal action described in paragraph 12, above, and there is no evidence in this case that the file maintained by the court represents a copy of the file maintained by the P&Z or vice-versa.

 

15.   It is found that no records are missing from the P&Z’s file related to the Berkshire Plaza project.

 

16.   With respect to the respondent’s compliance with the complainant’s October requests, it is found that the complainant was given access to inspect the Berkshire Plaza project file maintained by the P&Z several times, and has received a copy of the records contained therein.

 

17.   It is also found that the P&Z obtained a copy of the new drawings on or about September 28, 2006 and provided the complainant with a copy of those drawings on or about October 4, 2006. 

 

18.   At the hearing on this matter, the complainant alleged that the respondent failed to promptly provide him with a copy of the new drawings.  However, it is found that such allegation was not fairly raised in his complaint and will not be addressed herein. 

 

19.   It is also found that two additional letters were added to the file, which letters are dated well after the complainant’s October 13 and 24, 2006 requests, and which letters the respondent provided to the complainant by letter dated February 21, 2007.

 

20.   It is found, therefore, that at the time of the hearing on this matter, the complainant had been given access to inspect and provided a copy of all the records that are in the Berkshire Plaza project file maintained by the P&Z.

 

21.   It is found that the respondent does not maintain any correspondence other than that which was already provided to the complainant and it is concluded that the respondent did not violate the FOI Act in that regard.

 

22.   Finally, with respect to the closing of the application, it is found that the complainant has not alleged a violation of the FOI Act in that regard and therefore, such allegation will not be addressed herein.

 

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

 

1.      The complaint is hereby dismissed.

 

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:

 

Christian H. Qualey

1 Cedar Circle

Newtown, CT 06470

           

Chairman, Planning and Zoning

Commission, Town of Newtown

c/o Adam J. Blank, Esq.

Cohen and Wolf

158 Deer Hill Avenue

Danbury, CT 06810

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-588FD/paj/10/29/2007