FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on June 17, 1997, at which time the complainant and the respondents 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:

The respondents are public agencies within the meaning of § 1-18a(a), G.S.

2. By letter to the respondent first selectman dated December 19, 1996, the complainant requested to hear tape recordings of the respondent board’s August 1 and August 15, 1996 meetings ("August tapes"). The complainant also requested the opportunity to hear all tapes of the respondent board’s meetings "retroactive to [six months] from the date the practice of taping was abolished."

3. By letter dated December 28, 1996 and filed December 31, 1996, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by ignoring his requests and by improperly destroying public records.

4. At the hearing on this matter, the complainant clarified that the second portion of his December 19, 1996 request was for any existing tapes that were created during the six month period prior to August 1996.

5. Also at the hearing on this matter, the respondents moved to dismiss the complaint on the grounds that the Commission lacks jurisdiction because:

The respondents also requested that the Commission impose a civil penalty upon the complainant for filing a frivolous appeal.

6. With respect to the respondents’ claim described in paragraph 5(a), above, § 1-21i(b)(1), G.S., provides in relevant part:

7. The respondents’ claim that the complainant made a request for the subject August tapes in September 1996 and was informed in writing at that time by the respondent first selectman that such tapes no longer existed. The respondents contend therefore, that the complaint in this matter was filed well beyond the prescribed thirty day period set forth in § 1-21i(b)(1), G. S., for filing an appeal.

8. It is found however, that although the complainant first requested the August tapes in September 1996, his December 19, 1996 request constituted a new request for both the August tapes and for additional tapes, as described in paragraphs 2 and 4, above; therefore the complaint in this matter, filed on December 31, 1996, was filed within the thirty day time period mandated under § 1-21i(b)(1), G.S.

9. With respect to the respondents’ claim in paragraph 5(b), above, it is found that prior to September 1996, it was the clerk of the respondent board’s practice to tape record board of selectmen meetings to aid her in the preparation of the meeting minutes and to re-use meeting tapes sometime after the minutes were prepared.

10. It is found that the clerk had re-used the requested August tapes prior to the time of the complainant’s first request for them in September and that the respondent first selectman so informed the complainant both in response to his September request and in a December 21, 1996 letter in response to his December 19, 1996 request.

11. It is further found that any tape recordings of meetings from the six month period prior to August 1996 had also been re-used in accordance with the clerk’s practice, described in paragraph 9, above.

12. It is therefore found that no tapes exist that would be responsive to the complainant’s December 19, 1996 request, nor did such tapes exist at the time of such request.

13. It is also found that after the complainant’s first request for the August tapes in September 1996, the respondent first selectman became aware of the requirements concerning the retention and destruction of public records and advised all boards and commissions in town of those requirements and instructed that if meeting tapes were made, such tapes were required to be retained for a period of six months. The respondents stated at the hearing on this matter, that they now understand that if a meeting tape is created, it must be retained in accordance with the state’s records retention requirements.

14. It is further found that the legality of the destruction of the requested tapes is a matter over which the state’s Public Records Administrator has jurisdiction and is not within the jurisdiction of the Commission.

15. Accordingly, it is concluded that the Commission lacks jurisdiction over the issue of whether the tapes that were the subject of the complainant’s request were destroyed in accordance with the applicable retention schedules.

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.

2. In its discretion, the Commission declines to impose a civil penalty in this case against the complainant.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 13, 1997.

__________________________
Doris V. Luetjen
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:
Charles Jackter
3 Raven Road
Colchester, CT 06415

Jenny Contois, First Selectman, Town of Colchester;
and Board of Selectman, Town of Colchester
c/o Richard A. Mills, Jr. Esq.
Shipman & Goodwin
1 American Row
Hartford, CT 06103-2819

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
fic1996-615/FD/tcg/08221997