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Final Decision FIC2013-275
In the Matter of a Complaint by
FINAL DECISION
Christie D. Levandowski,
     Complainant
     against
Docket #FIC 2013-275
Francis Armentano, Director of
Community Development, Town of
Granby; Office of Community
Development, Town of Granby;
Planning and Zoning Commission,
Town of Granby; and Town of Granby,
     Respondents
April 9, 2014

     The above-captioned matter was heard as a contested case on March 31, 2014, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The case caption has been amended to reflect that Christie Levandowski is the complainant in this matter.
     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 complaint filed May 6, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with certain requests for records, and by holding certain illegal meetings.   
     3.  Specifically, the complaint alleged that:
(a) on April 10, 2013, she verbally requested to inspect “a drawing” and that the respondents “failed to place [it]… in the public record” and “failed to produce it for inspection;”
(b) “on April 9, 2013, the respondents received a map...that they…failed to place in the public record” and “in an accessible place;”
(c) “on at least one occasion, the respondent Office of Community Development [(OCD)] failed to make records available for prompt inspection during business hours” because such records were in the respondent Amentano’s personal office and he was not in the office;
(d) the respondents failed to provide all emails responsive to a written request dated April 10, 2013;
(e) the respondents violated the notice provisions with regard to an April 6, 2013 special meeting and that they conducted such meeting in such a manner that those in attendance could not hear what was being said or see “evidence” being presented;
(f) during a regular meeting of the respondent Planning and Zoning Commission [(PZC)], the members of the PZC discussed a matter not noticed on the agenda for such meeting.
     4.  Section 1-200(5), G.S., provides:
“Public records or files” means 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.
     5.  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.
     6.  Section 1-212(a), G.S., provides, in relevant part, that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  Section 1-225(d), G.S., provides, in relevant part:
Notice of each special meeting of every public agency…shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency's Internet web site, if available, and 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…clerk shall cause any notice received under this section to be posted in his office….The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency….  (emphasis added).
     8.  Section 1-225(c), G.S., provides, in relevant part:
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…. 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.
     9.  Section 1-225(a) provides, in relevant part, that “the meetings of all public agencies…shall be open to the public.”
     10. With regard to the allegation described in paragraph 3(a), above, the complainant claimed, at the hearing in this matter, that on the morning of April 10, 2013, she arrived at the OCD and asked the administrative assistant (assistant) to inspect a drawing and a map pertaining to a particular property (property), which documents had been presented at a meeting of the PZC the evening before.  It is found that the complainant did in fact arrive early in the morning at the OCD on April 10th, and that she did not have an appointment to view records at that time.  Nonetheless, it is found that the assistant offered to get the file pertaining to the property (file) for her and went to search for it, but could not locate it.  It is also found, however, that the assistant suggested to the complaint that she come back in an hour or so, after the respondent Armentano (Armentano) arrived at work and located the file, so that she could inspect the documents she was interested in.  It is found that the assistant believed that the complainant specifically requested to inspect only the map, which was located in the file, and not the drawing. 
     11. It is found that when the respondent Armentano arrived at work that morning, the assistant relayed the complainant’s request to him and he located the file and provided the complainant, on April 10th  or 11th, with a copy of a map that was in the file.  Armentano testified, and it is found, that it was his understanding that the complainant requested a copy of a map, not a drawing.
     12. It is found that the respondents provided the complainant with a copy of the drawing on April 15, 2013, in response to a separate written request, dated April 10th, for emails.1  

1
The drawing was attached to an email.
     13. However, the complainant claims that she was denied prompt access to the drawing because it was not immediately provided to her for inspection on the morning of April 10th.  In addition, the complainant alleges that the respondents failed to put the drawing in the “public record.”
     14. With regard to the promptness claim, it is found that, under the facts and circumstances of this case, the respondents did not violate the promptness provisions of the FOI Act when they immediately searched for the file in response to the request to inspect, were temporarily unable to locate such file, and offered to provide the complainant with the opportunity to inspect the file approximately one hour later. 
     15. With regard to the claim that the respondents failed to put the drawing in the “public record,” it is found that a copy of the drawing, condensed into an 8 by 10 inch size, was sent to Armentano on March 12, 2013, as an attachment to an email, by the town engineer.  It is found that the town engineer maintained the full size version of the drawing in his office.  It is found that Armentano did not print out the email, with the drawing attached, and place these documents in the file.  However, it is found that such records were, in fact, part of the public record, as evidenced by the fact that when the complainant made a written request for emails pertaining to the file (see paragraph 19 and footnote 1, below), such records, including the drawing, were provided to her.
     16. Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 3(a), above.
     17. With regard to the allegation described in paragraph 3(b), above, it is found that the Commission does not have jurisdiction to adjudicate such allegation because it does not reference a particular date of an alleged violation, nor does it allege that a request for the map was made and denied.  Moreover, as noted in paragraph 11, above, Armentano provided the complainant with a copy of the map on April 10th or 11th.  Accordingly, such allegation shall not be further addressed herein.
     18. At the hearing in this matter, the complainant conceded that she could not identify specific dates on which the OCD allegedly failed to make records available for prompt inspection, and withdrew the complaint as it pertains to the allegations described in paragraph 3(c), above.  Accordingly, such allegation shall not be further addressed herein.
     19. With regard to the allegation described in paragraph 3(d), above, it is found that, in response to the April 10th written request for emails, described in paragraphs 12, 15 above, and footnote 1, below, the respondents, on April 15th, provided the complainant with all emails they maintain responsive to such request.
     20. Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 3(d), above.
     21. With regard to the allegation described in paragraph 3(e), above, that the notice and agenda for the April 6th special meeting of the PZC “inadequately communicated the location of the meeting”, it is found that, on April 6, 2013, members of the PZC  and Armentano conducted a site walk of 329 Granville Road, in Granby, Connecticut.2   It is further found that the notice and agenda for such special meeting stated:  “The Planning and Zoning Commission will walk the property at 329 Granville Road on Saturday, April 6, 2013, beginning at 9:00 a.m.”

2
The respondents do not dispute that the site walk constituted a public meeting under the FOI Act.
     22. According to the complainant, the notice as to the location of the meeting was inadequate because 329 Granville Road is a very large property and there is more than one point of access to it.  However, it is also found that at least eight members of the public, including the complainant, attended the site walk.  Moreover, it is found that the attendance by, and participation in, this site walk by members of the public was far greater than is usual for a site walk.  Accordingly, it is found that the notice as to the location of the meeting was sufficient to apprise the public of where the meeting would take place. 
     23. In addition, the complainant, who is in her 70’s, claimed that she, and other members of the public, were not able to “keep up” with Armentano and the members of the PZC in attendance at the site walk, and before they could “catch up,” to the group, the respondents were already discussing certain matters pertaining to the property that she could not hear.  The complainant further testified that the respondents, for example, walked down a very steep hill during the site walk, and at the bottom of such hill had discussions and viewed a map.   The complainant alleged that she and other members of the public were effectively excluded from the discussions because they were held in an area of the property that was inaccessible to them.
     24. It is found that the complainant did not make it known to the respondents that she could not hear the discussions or that the reason she did not follow Amentano and members of the PZC down the steep hill was because she was physically unable to do so.  Also, it is found that many people on the site walk chose not to stay with the group, simply because they were interested in looking at things on the property other than the particular thing the group was looking at at the time.  It is further found that it was reasonable, in view of the foregoing, for the respondents to discuss a particular feature of the property during a site walk at the actual location of such feature.  Under the facts and circumstances of this case, therefore, it is found that the respondents did not violate the FOI Act in the manner alleged in paragraphs 3(e) and 23, above.
     25. Finally, the complainant alleged, in paragraph 3(f), above, that the PZC violated the notice provisions of the FOI Act when, during their April 23, 2013 meeting, they discussed the property and that such discussion was not listed as an item on the meeting agenda.
     26. With regard to such allegation, the court has observed that one purpose of a meeting agenda "is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views," and that "[a] notice is proper only if it fairly apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing."  Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001).
     27. It is found that the PZC held a public hearing and meeting on April 23, 2013.  It is found that, after the public hearing portion on the property was concluded, the members of the PZC discussed the merits of the application pertaining to the property that was the subject of the public hearing.  However, it is found that such discussion was not listed on the meeting agenda, nor was it added to the agenda by 2/3 vote of members present.  Rather, it is found that the PZC discussed the matter under the agenda item entitled “Commission discussion of items of interest or concern.”  It is found that such agenda item is not sufficient to fairly apprise the public that the application pertaining to the property would be discussed during the April 23rd meeting.
     28. Accordingly, it is concluded that the PZC violated the FOI Act as alleged in paragraph 3(f), above.
     29. The Commission, in its discretion, declines to address the complainant's requests for imposition of a civil penalty against the PZC.
     30. At the hearing in this matter, the respondents requested an imposition of a civil penalty against the complainant for filing a frivolous complaint against them.  The Commission similarly declines to address such request.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1. Henceforth, the respondent PZC shall strictly comply with the notice requirements contained in § 1-225, G.S.
     2. The complaint against Armentano and the OCD is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 9, 2014.
__________________________
Cynthia A. Cannata
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:
Christie D. Levandowski
250 Broadway
Kingston, NY  12401
Francis Armentano, Director of Community Development,
Town of Granby; Office of Community Development,
Town of Granby; Planning and Zoning Commission,
Town of Granby; and Town of Granby
c/o Donald Holtman, Esq.
Katz & Seligman LLC
130 Washington Street
Hartford, CT  06016

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-275/FD/cac/4/9/2014