FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 2, 2008, 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 dated February 29, 2008 and filed March 3, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide access to public meetings and records.  The complainant alleged that the respondent’s annual meeting of February 4, 2008 did not comply with the requirements of the FOI Act and that the minutes of such meeting were not timely available for inspection. 

 

2.      The respondent asserts that it is not a public agency within the meaning of §1-200(1), G.S., and, therefore, does not need to comply with the requirements of the FOI Act.

 

3.      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 … (Emphasis added.)

 

4.      It is found that the Connecticut General Assembly incorporated the respondent Association by Special Act in 1937 as a “body politic.” 

 

5.      It is found that, as a “body politic,” the General Assembly expressly granted the respondent the right to raise taxes through annual assessments, to regulate the use and right of easements, to build and maintain all necessary main sewers and drains, to appoint special police to act with the same powers and duties that constables have in towns, to make reasonable health regulations, and to approve the construction and appearance of any structure within the association.

 

6.         It is found that the Association’s by-laws state that the Association’s principal purpose is the regulation of “activities for the general protection and maintenance of property values within the Association’s boundaries.”

 

7.      It is found that, by statute, a Board of Managers of not less than three and not more than eleven persons governs the Association.  It is found that members of the Association elect the Board of Managers, including the officers of the Association, to one-year terms.  It is found that the Board of Managers is in charge of the affairs of the Association and holds regular and special meetings.  It is found that the Treasurer, who is an officer of the Association and a member of the Board of Managers, keeps account of all Association money and is responsible for depositing such money in banks and depositories designated by the Association’s President and Board of Managers.

 

8.      It is concluded that the Association is a “district or other political subdivision of the state,” within the meaning of §1-200(1)(A), G.S., because the Association is discharging limited functions of self-government, within a prescribed area, as authorized by the General Assembly. Holthaus v. Clerk, Morningside Association, Docket #FIC 2006-461 (respondent association was created by Special Act of the General Assembly, which gave the association the power to levy taxes on the real estate within its specific territory “to provide for the care and improvement of the lands in [the Association’s] district”).  Also, See State ex rel Maisano v. Mitchell, 155 Conn. 256 (1967); Dugas v. Beauregard, 155 Conn. 573, 578 (1967); Sachem’s Head Property Owner’s Association v. Guilford, 112 Conn. 515, 517-518 (1931); Herbert Latournes v. Marvin Smith, Tax Collector, Chalker Beach Improvement Association, Inc.; and Chalker Beach Improvement Association, Inc., FIC Docket # 1999-459; Mr. and Mrs. Peter Serafin v. Lord’s Point Asociation, Inc., FIC Docket # 1987-115; In the Matter of a Request for Advisory Opinion, Crescent Beach Association, Advisory Opinion #48; Frank L. Smith v. Mrs. Jeanette DiPinto, President of the Sunset Association; and Sunset Acres Association, FIC Docket # 1979-184; §7-372, G.S.      

 

9.      It is concluded, therefore, that the respondent is a public agency within the meaning of §1-200(1)(A), G.S.

 

10.   Section 1-210(a), G.S., provides in relevant part:

 

[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 receive a copy of such records in accordance with the provisions of section 1-212. 

 

11.  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 . . . .”

 

12.   Section 1-225, G.S., provides:

 

(a)     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.

 

(b)    … 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. …

 

(c)     The agenda of the regular meetings of every public agency … shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) … in the office of the clerk of such subdivision for any public agency of a political subdivision of the state… . Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

 

(d)    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 [or her] office. …

 

(f)  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.

 

13.   It is found that, customarily, the Association has not complied with the requirements of the FOI Act. 

 

14.   It is found that the Board of Managers does not provide public notice of meetings.  It is found that the complainant learned about meetings of the Board of Managers and of votes taken by the Board on matters that were of concern to the complainant “through the good graces of other members of the Association.”  It is further found that the Board of Managers does not record its votes.

 

15.   It is found that on February 4, 2008, the Association held its annual meeting.  It is found that the Association did not properly notice the meeting, post an agenda, or otherwise comply with the requirements of the FOI Act.  It is found that the complainant, who is a tax-paying member of the Association, attended the annual meeting, but was told to leave when the Board of Managers went into executive session to discuss “litigation.” 

 

16.   It is found that on February 29, 2008, the complainant requested copies of records of the respondent, including budgets and legal bills.  It is found that on March 26, 2008, the respondent’s attorney sent a letter to the complainant’s then-attorney, informing the complainant that the respondent would only provide the copies of the records to the complainant’s attorney and required the complainant to go with his attorney to the respondent’s attorney’s office to inspect the records and designate which he wanted the respondent to copy for him. 

 

17.   It is found that upon receiving the respondent’s letter, described in paragraph 16, above, the complainant objected to the respondent’s demands, which would require him to pay his attorney for access to public records.  It is found that on June 27, 2008, the complainant and his current attorney nevertheless acceded to the respondent’s demands because they believed it was imperative to have access to the records.  It is found that they viewed the records at the respondent’s attorney’s office and indicated by placing post-it notes which copies they wanted the respondent to provide to them, but that the complainant had not received the designated copies as of the date of the hearing in this matter.    

 

18.   Accordingly, it is concluded that the respondent violated the access to meetings and records requirements of the FOI Act, including §§1-210(a), 212(a), and 225, G.S.

 

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

 

1.      The Commission declares that the actions taken by the respondent at its February 4, 2008 annual meeting are null and void.

 

2.      Forthwith, the respondent Association is to provide to the complainant free of charge copies of the records he designated, as described in paragraph 17 of the findings, above.

 

3.      The respondent Association shall reimburse the complainant for the cost, if any, of retaining his attorney to accompany him to the respondent’s attorney’s office in order to have access to non-exempt public records, as described in paragraph 17 of the findings, above.  The complainant shall provide to the respondent a statement of his attorney’s fee, if any, for accompanying the complainant to the respondent’s attorney’s office and for inspecting the records with the complainant.

 

4.      Henceforth, the respondent shall comply with the access to meetings and records requirements of the FOI Act.

 

5.   The respondent is encouraged to attend a FOI workshop to be conducted by a member of the Commission’s staff.  The respondent’s president or attorney should contact the Commission’s office to arrange such workshop.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 2008.

 

 

________________________________

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:

 

Jay Fain DBA

Winton Park Holdings

c/o Alan R. Spirer, Esq.

830 Post Road East

PO Box 5201

Westport, CT 06881-5201

 

Winton Park Association

c/o Eugene E. Cederbaum, Esq. and

Ira W. Bloom, Esq.

Berchem, Moses & Devlin, PC

27 Imperial Avenue

Westport, CT 06460

 

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-139FD/paj/10/28/2008