FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
O & G. Industries, Inc.,
Complainant
against Docket
#FIC 95-218
Beacon Falls Planning and
Zoning Commission,
Respondent May 22, 1996
The above-captioned matter was re-opened and heard as
a contested case on April 9, 1996, at which time the complainant and the
respondent appeared, stipulated to certain facts and presented 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 1-18a(a), G.S.
2. By letter
of complaint dated and filed with the Commission on June 29, 1995, the complainant
appealed to the Commission alleging that the respondent violated the Freedom of
Information ("FOI") Act by refusing to allow a stenographer, hired by
the complainant, to record the respondent's deliberations on May 31, 1995, at a
special meeting on whether to terminate the complainant's operation of an earth
products processing plant (hereinafter "the non-conforming use
matter"). The complainant
requested, in its letter of complaint, that the respondent's vote to terminate
its operation as a non-conforming use be declared null and void.
3. It is
found that the respondent held a special meeting on May 31, 1995.
4. At the
hearing on this matter, the respondent conceded that at the May 31, 1995
meeting, described in paragraph 3, above, it prohibited the complainant from
recording the proceedings of such meeting.
5. Section
1-21a, G.S., provides:
(a)
At any meeting of a public agency which is open to the public, pursuant
to the provisions of section 1-21, proceedings of such public agency may be
recorded...
Docket #FIC 95-218 Page
2
subject to such rules as such public
agency may have prescribed prior to such meeting, by any person....Any
recording...equipment may be so located within the meeting room as to permit
the recording...of the proceedings of such public agency....the person
recording the proceedings, shall be required to handle the recording as
inconspicuously as possible and in such manner as not to disturb the
proceedings of the public agency....
(b)
Any such public agency may adopt rules governing such recording...but,
in the absence of the adoption of such rules and regulations by such public
agency prior to the meeting, such recording shall be permitted as provided in
subsection (a).
6. It is
concluded that the respondent violated 1-21a(a), G.S., when it failed to
permit the complainant to record the proceedings of the May 31, 1995 special
meeting.
7. Section
1-21i(b)(2), G.S., provides in relevant part:
The commission may declare null and
void any action taken at any meeting which a person was denied the right to
attend....
8. It is
found that the complainant was not denied the right to attend the May 31, 1995
special meeting, but was denied the right to record such meeting.
9. It is
found that at its October 19, 1995 public hearing and November 16, 1995 special
meeting, the respondent voted to rescind its May 31, 1995 decision, which
decision the complainant requests be declared null and void.
10. The
complainant contends that the May 31, 1995 decision was not properly rescinded
by the respondent because the October 19, 1995 vote improperly occurred at a
public hearing, and the respondent failed to provide notice that the May 31,
1995 decision would be rescinded at the October 19, 1995 hearing and the November
16, 1995 special meeting.
11. Nothing
in the FOI Act, however, precludes the respondent from voting at a public
hearing. If the respondent's vote
constitutes a violation, it is not a violation of the FOI Act.
12. It is
found that the respondent provided notice in the October 19, 1995 public
hearing notice and the November 16, 1995 meeting notice that it would meet to
consider and determine the non-conforming use matter.
Docket #FIC 95-218 Page 3
13. It is
found that such notice, as described in paragraph 12, above, was sufficient to
provide notice that the respondent might vote on the non-conforming use matter.
14. It is
also found that the respondent held a new public hearing and permitted the
complainant to record such proceedings.
15. It is
therefore concluded that a null and void remedy would not provide relief
appropriate to rectify the denial of the right to record the May 31, 1995.
16.
Accordingly, the request for a null and void remedy is denied.
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 requirements
of 1-21a(a), G.S.
Approved by Order of the
Freedom of Information Commission at its regular meeting of May 22, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-218 Page
4
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:
O & G Industries, Inc.
c/o Clare E. Kindall, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103
Beacon Falls Planning and
Zoning Commission
c/o Robert Carter, Esq.
Carter & Civitelle
One Bradley Road - Suite 301
Woodbridge, CT 06525
Elizabeth A. Leifert
Acting Clerk of the Commission