Final Decision FIC2011-240
In the Matter of a Complaint by
||Docket #FIC 2011-240|
George Slaiby and H.W. Davis, as
Members, Local Emergency Planning
Commission, Town of Southbury; and
Local Emergency Planning Commission,
Town of Southbury,
February 8, 2012
The above-captioned matter was heard as a contested case on September 27, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC 2011-241, Jon Norris v. Board of Selectmen, Town of Southbury; and Town of Southbury.
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 §1-200(1), G.S.
2. By letter of complaint, dated May 6, 2011 and filed May 11, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by:
(a) holding a meeting in March 2009, “for which there is no posted agenda;”
(b) failing to meet in 2010, “however an updated town emergency response plan was updated [sic] in December 2010;”
(c) failing to post the agenda and minutes for a March 28, 2011 meeting of the respondent Local Emergency Planning Commission (LEPC);
(d) failing to post the agenda and minutes for an April 12, 2011 meeting of the LEPC.
In his complaint, the complainant requested that a civil penalty be assessed against the respondents.
3. Section 1-225(a), G.S., provides, in relevant part:
[t]he meetings of all public agencies…shall be open to the public. The votes of each member of any 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. Not later than seven days after the date 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, except that no public agency of a political subdivision of the state shall be required to post such minutes on an Internet website. Each public agency shall make, keep and maintain a record of the proceedings of its meetings. [Emphasis added].
4. Section 1-225(d), G.S., provides, in relevant part:
(d) 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 secretary or 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.
5. Section 1-206(b), G.S., provides, in relevant part:
(b)(1) Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed not later than thirty days after such denial…[Emphasis added].
6. It is found that the respondent LEPC does not meet according to a regular schedule, but rather, meets on an “as needed” basis. It is therefore concluded that the meetings of the LEPC are special meetings, within the meaning of §1-225(d), G.S.
7. With regard to the allegations, generally described in paragraph 2, above, that the respondents failed to “post” meeting agendas and minutes, the complainant testified that he believed that the respondents are required to post their meeting agendas and minutes on their website. The complainant further testified, and it is found, that he did not make a request to the respondents for copies or to inspect such agendas or minutes, but rather, only searched the respondent LEPC’s website for such agendas and minutes. It is further found that the complainant did not go to the town clerk’s office to determine whether the agendas were posted there, or whether the minutes were on file there.
8. With regard to the allegation, described specifically in paragraph 2(a) above, it is found that the complaint with respect to such allegation was not filed within 30 days of such alleged violation, and that therefore, the Commission lacks jurisdiction to consider such allegation.
9. Construing the allegation described in paragraph 2(b), above, as a failure by the respondents to post on the LEPC website the agendas and minutes of meetings that the complainant believes occurred in 2010, it is found that the Commission lacks jurisdiction to consider the allegation that the LEPC failed to post agenda(s), as the complaint was not filed within 30 days of such alleged violation(s). With regard to the allegation that the respondent LEPC failed to post minutes on its website for any meetings it may have had in 2010, the respondents claim that they are not required to do so.
10. The requirement that minutes be posted on the websites of certain public agencies, which would include LEPC, was repealed, effective October 1, 2010, by Public Act 10-171. See §1-225(a), G.S., referenced in paragraph 3, above.
11. It is therefore concluded that the respondents did not violate the FOI Act as alleged in paragraph 2(b), above.
12. With regard to the allegation described in paragraph 2(c), above, the complainant testified at the hearing that he believed that there was a meeting of the LEPC on March 28, 2011. However, there was credible evidence offered by the respondents that there was no meeting of the LEPC on March 28, 2011. Rather, it is found that there was a staff meeting of town department heads on March 29, 2011, to assess each department’s response to a flooding situation that had occurred in the town. Thus, it is found that, although some of the department heads are also members of the LEPC, the meeting on March 29th was not a meeting of the LEPC itself, or meeting of a subcommittee of the LEPC.
13. Based upon the foregoing, it is concluded that the respondents did not violate the FOI
Act as alleged in paragraph 2(c), above.
14. With regard to the allegation described in paragraph 2(d), above, it is found that the respondent LEPC met on April 12, 2011. It is found that the respondents failed to post a notice and agenda for such meeting on its website, as alleged. As noted in paragraph 10, above, the respondents were not required to post minutes of their April 12, 2011 meeting on their website.
15. Accordingly, it is found that the respondents violated the FOI Act by failing to post the notice and agenda for their April 12, 2011 meeting, in accordance with the requirements of §1-225(d), G.S., but did not violate the FOI Act by failing to post minutes on their website.
16. The Commission declines to consider the imposition of civil penalties in this case.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondents shall strictly comply with the requirements of §1-225, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 2012.
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:
145 Hornet Nest Road
Southbury, CT 06488
George Slaiby and H.W. Davis, as Members, Local
Emergency Planning Commission, Town of Southbury;
and Local Emergency Planning Commission, Town of Southbury
c/o Tara L. Shaw, Esq.
Secor, Cassidy & McPartland, PC
41 Church Street
P.O. Box 2818
Waterbury, CT 06723
Cynthia A. Cannata
Acting Clerk of the Commission