FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 24, 2009, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

At the conclusion of the hearing in this matter, pursuant to §1-21j-38 of the Regulations of Connecticut State Agencies, the hearing officer offered the parties an opportunity to file after-filed exhibits.  The complainant filed seven after-filed exhibits.  Four of the after-filed exhibits constitute documents already in the record.  The remaining three after-filed exhibits are marked as follows:

 

Complainant’s Exhibit E:  April 6, 2009 letter from Wesley Lubee to Stephen Nere.

 

Complainant’s Exhibit F:  April 15, 2009 letter from Wesley Lubee to Stephen Nere.

 

Complainant’s Exhibit G:  April 16, 2009 letter from Stephen Nere to Wesley Lubee with a 2-page attachment.

 

 

            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 received and filed on March 18, 2009, and later amended on April 17, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       conducting an illegal telephone meeting on February 6, 2009;

 

b.      failing to provide him with copies of records pertaining to bond coverage of certain employees of the Town of Wallingford Housing Authority; and

 

c.       failing to respond to his inquiries pertaining to bond coverage of the Treasurer and Assistant Treasurer for the Town of Wallingford.

 

3.      Section 1-200(2), G.S., provides in relevant part that:

 

“Meeting” means 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, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. 

 

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

 

The meetings of all public agencies, except executive sessions… 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.  Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available.  Each such agency shall make, keep and maintain a record of the proceedings of its meetings.

 

5.      The respondent concedes that on February 6, 2009, the executive director of the respondent board (the “executive director”) polled four board members by telephone and determined that a quorum of the board would support the hire of a new architect in association with the board’s filing of their Small Cities Application involving a $750,000 grant.

 

6.      At the hearing, the executive director testified that the respondent board was under “great time constraints” to hire a new architect to prepare bid documents for the Small Cities Application by May 31, 2009, the submission deadline for such application. 

 

7.      The executive director also testified that he polled the respondent board members by telephone, in lieu of holding a special meeting, in an attempt to expedite the process for the Small Cities Application.

 

8.      It is found that the February 6^th telephone poll was unnoticed.

 

9.      It is found that the respondent board included in its regular meeting agenda of February 26, 2009, the following item for consideration: “New Business…Formalization of telephone poll selecting J Associates as architects in association with our Small Cities Application.”

 

10.  It is further found that the respondent board recorded in the minutes for its February 26^th meeting that the board members “did the phone poll on [February] 6^th …Chairman Prentice introduced it, it was seconded by Commissioner Jill Kelliher, Commissioners Ulbrich and Mezzei voted yes.” The minutes also record that the board “need[ed] to formalize the phone poll first,” before voting to “authorize Chairman Prentice to sign the Architectural Services Contract with J Associated [sic].” 

 

11.  It is concluded that the February 6^th  telephone discussion, described in paragraphs 5, 7 and 8, above, constituted a “meeting” of the respondent board within the meaning of §1-200(2), G.S., because board members discussed, by telephone, a matter over which the respondent board “has supervision, control, jurisdiction or advisory power.”  

 

12.  It is further concluded that the meeting was not “open to the public” within the meaning of §1-225(a), G.S., and therefore, the respondent board violated such provision. 

 

13.  It is also concluded that the respondent board violated §1-225(a), G.S., by failing to issue notice of the February 6^th telephone meeting, and failing to have available votes for public inspection within 48 hours of such meeting. 

 

14.  It is found that, by letter dated March 26, 2009, the complainant made a request to the executive director for “a copy of the bond covering any and all employees of the Housing Authority who handle Housing Authority funds and the funds of Housing Authority tenants.” 

 

15.  It is found that on March 27, 2009, the respondent made available to the complainant copies of records, which were responsive to the request for records, described in paragraphs 2.b and 14, above.

 

16.  It is also found that, by letter dated April 6, 2009, the complainant inquired as to whether “the Housing Authority ha[s] bond coverage for the Treasurer and Assistant Treasurer, who are not employees?”

 

17.  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, 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.

 

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

 

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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

19.  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.”

 

20.  It is found that the request described in paragraphs 2.c and 16, above, is a request for answers to a question, not a request for records.  It is concluded as a matter of law that because the FOI Act does not require a public agency to provide answers to questions in response to a request, those portions of the complainant’s requests that seek answers to questions do not allege a violation of the Act.

 

21.  It is found that the respondent maintains the records, described in paragraphs 2.b and 14, above, and that such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

22.  It is found that the respondent’s provision of the requested records the day after they were requested, was prompt within the meaning of §§1-210(a) and 1-212(a), G.S.

 

23.  It is concluded, therefore, that the respondent did not violate the promptness provisionof §§1-210(a) and 1-212(a), G.S., in response to the request for records, described in paragraphs 2.b and 14, above.

 

24.  At the hearing, the complainant requested that, as a remedy, the Commission order the respondent to amend the respondent’s bylaws to include a provision prohibiting telephone polling.  The Commission declines to impose the remedy requested by the complainant.

 

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

                                                                       

1.       Henceforth, the respondent shall strictly comply with the meeting provisions set forth in the FOI Act.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 23, 2009.

 

 

____________________________

S. Wilson

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:

 

Wesley S. Lubee, Jr.  

15 Montowese Trail

Wallingford, CT 06492

 

Board of Commissioners, Housing Authority, Town of Wallingford

C/o E. James  Loughlin, Esq.

Loughlin Fitzgerald PC

150 South Main Street

Wallingford, CT 06492

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-270FD/sw/9/25/2009