FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Daniel F. O’Connor,

Complainant,

against Docket #FIC 1995-312

Kathy Neth, Clerk, Candlewood Isle Tax

District; Ellen Berk, John Lavagnini; Francine

Leniston; Robert Maloney; Linda Shine-Wise;

Jerry Ryan; Edward Asvazadourian; Don Torre

and Candlewood Island Tax District, Board of

Directors,

Respondents August 28, 1996

The above-captioned matter was heard as a contested case on May 21 and July 2, 1996, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #s FIC 1995-332, Kathy Neth, Clerk, Candlewood Isle Tax District; Ellen Berk, John Lavagnini; Francine Leniston; Robert Maloney; Linda Shine-Wise; Jerry Ryan; Edward Asvazadourian; Don Torre and Candlewood Island Tax District, Board of Directors and FIC 1995-373 Clerk, Candlewood Isle Tax District, were consolidated with the above-captioned case for purpose of hearing.

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 §1-18a(a), G.S.

2. By letter of complaint dated September 11, 1995 and filed with the Commission on September 14, 1995, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

a. denying him access to inspect and to copy eleven (11) categories of records;

b. destroying tapes of meetings after minutes have been prepared;

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c. failing to maintain an office;

d. requiring that requests to inspect and copy records be in writing; and

e. failing to provide access to minutes and a record of votes within seven days and forty-eight hours, respectively, as required by §1-21, G.S.

The complainant requested in his letter of complaint that the Commission impose civil penalties upon the respondents.

3. At the May 21, 1995 hearing into this matter, the respondents filed a motion to dismiss for lack of subject matter jurisdiction on the basis that the Commission did not hear this appeal within thirty days of its receipt.

4. Section 1-21i(b)(i), G. S., provides in relevant part that:

Said [FOI] commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal. The [FOI] Commission shall adopt regulations in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for hearing. Any such appeal shall be heard within thirty days after receipt of a notice of appeal and decided within sixty days after the hearing. [Emphases added.]

5. It is found that this appeal was filed on September 14, 1995 and was not privileged in its assignment for hearing.

6. Consequently, it is concluded that the Commission has jurisdiction to hear and decide this appeal within one year of September 14, 1995. The respondent’s motion to dismiss is therefore, denied.

7. With respect to the allegation described in paragraph 2a. above, it is found that by letters dated August 7 and 22, 1995 the complainant requested that the respondent clerk provide him with access to inspect and copy eleven categories of records (hereinafter “requested record items #1 through 11”).

Docket #FIC 1995-312 Page 3

8. It is found that after several communications between the complainant and the respondent clerk, the respondents provided the complainant with access to inspect and copy the requested record items # 1, 2, 3, 4, 5 (the volume and page number), 6, 8, 9 and 10 on or after November 10, 1995.

9. It is found that the respondents do not maintain any records responsive to requested record items #s 7 and 11.

10. It is concluded that the requested record items provided to the complainant, and as described in paragraph 8, above, are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

11. It is concluded that the respondents provision of access on or after November 10, 1995, and as described in paragraph 8, above, was not prompt, and therefore the respondents violated §§1-15 and 1-19(a), G.S.

12. With respect to the allegation described in paragraph 2b. above, it is found that on August 7, 1995, the complainant requested that the respondent clerk provide him with a copy of tapes of the respondent board’s meetings for the month of July 1995 and for August 17, 1995.

13. It is found that the respondent clerk provided the complainant with access to the requested tapes on or after November 10, 1995.

14. It is therefore concluded that the respondent clerk failed to provide prompt access to the requested tapes, and therefore the respondents violated §§1-15 and 1-19(a), G.S.

15. It is also found that the respondent clerk’s practice was to erase meeting tapes after preparing the respondent board’s meeting minutes.

16. It is found that the laws pertaining to retention and destruction of public records is a matter over which the state’s Public Records Administrator has jurisdiction and is not within the jurisdiction of the FOI Commission.

17. Accordingly, it is concluded that the Commission lacks jurisdiction over the issue of the retention and destruction of the subject tape recordings.

18. With respect to the allegation described in paragraph 2c. above, it is found that at the time the complaint was brought, the respondent board did not maintain a “regular office or place of business” where its public records could be inspected, nor was there

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available “an office of the clerk of the political subdivision in which such public agency is located”, within the meaning of §1-19(a), G.S.

19. Section 1-19(a), G,S., provides in relevant that “every person shall have the right to inspect such [public] records promptly during regular office or business hours or to receive a copy in accordance with the provisions of section 1-15.”

20. Section 1-19(a), G.S., in relevant part further provides that:

Each such [public] agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located….

21. It is found that the Candlewood Island Taxing District (“district’) is a political subdivision and the respondent agencies are located within that political subdivision.

22. It is found that some of the district’s records are kept at a community center, which is closed during the winter, some by the district’s bookkeeper at her home, and some by the respondent clerk at her home.

23. It is found that the respondent clerk does not maintain an office which is accessible to the public where the public can inspect records promptly.

24. It is concluded that the respondents violated §1-19(a), G.S., by failing to maintain the district’s public records in its custody at either a regular office or place of business in an accessible place, or to maintain such records in an accessible office of the respondent clerk.

25. With respect to the allegation described in paragraph 2d. above, it is found that the respondents’ procedure is to require that all requests for access to inspect and copy records be put in writing.

26. It is concluded that nothing in §1-19(a), G.S., requires that requests to inspect records be put in writing, and therefore the respondents violated §1-19(a), G.S., by requiring a written request to inspect records.

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27. With respect to the allegation described in paragraph 2e. above, it is found that the minutes of the respondent board are generally prepared by the respondent clerk within seven days of the respondent board’s meetings.

28. It is found that the respondent clerk provided the complainant with copies of the requested minutes, except for the minutes of the respondent board’s meetings of February and March 1995.

29. It is found however, that prompt access to such prepared minutes was not available because the respondents do not maintain them in a place which is accessible to the public during regular office or business hours, as described in paragraphs 18, 22 and 23, above.

30. The Commission in its discretion declines to impose 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. The respondent shall forthwith search its records thoroughly and provide the complainant with the respondent board’s minutes of February and March, 1995, if such minutes have not yet been provided.

2. The respondents shall forthwith, and in accordance with §1-19(a), G.S., arrange to;

(a) either designate an accessible office or place of business of the district and cause all of the district’s public records to be located there, such office to be open to the public during regular office hours held and posted at such designated location, or

(b) maintain the district’s public records at an accessible office of the respondent clerk.

3. The respondent board shall provide the Commission with an affidavit attesting to the placement of all of the district’s public records in accordance with the provisions of paragraph 2 of this order, above, within forty-five days of the date of the mailing of the notice of the final decision in this matter.

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Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 1996.

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket # FIC 1995-312 Page 7

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:

Daniel F. O’Connor

7 Peter Cooper Road

New York, New York 10010

Kathy Neth, Clerk, Candlewood Isle Tax District; Ellen Berk, John Lavagnini; Francine

Leniston; Robert Maloney; Linda Shine-Wise; Jerry Ryan; Edward Asvazadourian; Don Torre

and Candlewood Island Tax District, Board of Directors

c/o Francis J. Collins, Esq.

148 Deer Hill Avenue

Danbury, CT 06810

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission