Final Decision FIC2012-548
In the Matter of a Complaint by
Cynthia A. Kleist and Derf J. Kleist,
||Docket #FIC 2012-548|
Public Safety Commission, Town of
Cheshire; and Town of Cheshire,
July 10, 2013
The above-captioned matter was heard as a contested case on April 22, 2013, at which time the complainants and the respondents appeared 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:
1. The respondents are public agencies, within the meaning of §1-200(1), G.S.
2. By letter dated October 1, 2012 and filed October 5, 2012, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:
(a) failing to timely file minutes and/or agendas of the Public Safety Commission’s meetings from 2009 to 2011;
(b) failing to timely file a schedule of its regular meetings for the year 2012; and
(c) denying their request to inspect a copy of “traffic stop regulations” during the complainants’ visit to the police department on September 25, 2012.
3. Section 1-225(a) provides:
(a) The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. The votes of each member of any such public agency upon any issue before 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 web site. Each public agency shall make, keep and maintain a record of the proceedings of its meetings.
4. Section 1-206(b)(1), G.S., provides:
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, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held. [Emphasis added].
5. With regard to the allegations described in paragraphs 2(a) and 2(b), above, it is found that, in September 2012, the complainants visited the office of the town clerk and inspected the agenda for the September 2012 meeting of the respondent Public Safety Commission (“PSC”). It is further found that, during such visit, the complainants, while inspecting the book containing the minutes and agendas maintained by the town clerk, found a written list inserted into the book, entitled “Public Safety”, which identifies certain minutes and agendas from 2009, 2010 and 2011 that were, at the time of the list’s creation, not on file with the clerk’s office (the “missing documents”).1 It is found that the list was prepared by an individual in the town clerk’s office, and that it is undated. It is further found that there is a notation on the list that the missing documents were requested from the PSC on November 3, 2011, and that the town clerk thereafter received from the PSC: (1) the minutes of the December 2010 meeting, (2) all agendas and minutes for the meetings held in 2011, and (3) the schedule of meeting dates for 2012.
The complainant stated at the hearing in this matter that she was not pursuing the allegation with regard to the filing of minutes and agendas of the PSC’s meetings held in 2011.
6. At the hearing in this matter, the hearing officer ordered the respondents to submit, as an after-filed exhibit, a copy of the schedule of the 2012 meetings of the PSC, indicating the date such schedule was filed with the town clerk. Such copy was received by the Commission on May 10, 2013, and has been marked as Respondents’ Exhibit 2. It is found that the schedule was filed with the town clerk on November 14, 2011, and that a revised schedule was filed on January 3, 2012. It is further found that, as of the date of the hearing in this matter, the respondents had not filed with the town clerk certain minutes or agendas of the PSC’s meetings held in 2009 or 2010.
7. According to the respondents, the PSC is an advisory commission made up of town residents who report to the police department about public safety issues. The meetings of the PSC are attended by a staff lieutenant, and the funding for the commission’s expenses, mainly consisting of the cost of a stenographer to take minutes at its meetings, comes from a line item in the police department’s budget. The meetings of the PSC are held at the town hall, and the PSC does not maintain its own office in the town. It is found that in 2009 and 2010, under the former police chief, minutes of, and agendas for, the PSC meetings were not always created and/or filed. However, it is found that, under the current police chief, the respondents timely filed the minutes and agendas of the PSC’s meetings held in 2012 and 2013, up to the date of the hearing in this matter, with the exception of the minutes of the March 2013 meeting, which were filed a few days late.
8. By motion dated and filed April 12, 2013, the respondents moved to dismiss the complaint, contending it was not filed within 30 days of the alleged violation. Such motion was denied by the hearing officer on April 17, 2013. This Commission has consistently held that “the responsibility to create minutes and make them available for public inspection is a continuing one and that the failure to meet such responsibility is a continuing violation….” See William J. Beach v. Chairman, Winsted Zoning Board of Appeals and Winchester Building Inspector, Docket #FIC 1988-362 (December 14, 1988). Accordingly, it is found that, with respect to the minutes of the PSC’s meetings held in 2009 and 2010 that were not on file at the office of the town clerk as of the date of the hearing in this matter, the Commission has jurisdiction to adjudicate the complaint that such minutes are not timely filed, in violation of §1-225, G.S.
9. Based upon the findings in paragraphs 5 and 6, above, it is found that the respondents violated the FOI Act by failing to file with the town clerk certain minutes and agendas of the PSC’s meetings held in 2009 and 2010.
10. With regard to the allegation, described in paragraph 2(b), above, §1-225(b), G.S., provides, in relevant part:
… any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year….[Emphasis added].
11. Based upon the finding, in paragraph 5, above, that the schedule of PSC meetings for 2012 was filed prior to January 31, 2012, it is concluded that the respondents did not violate the FOI Act as alleged.
12. With regard to the allegation described in paragraph 2(c), above, it is found that, on September 25, 2012, the complainants requested to inspect, without an appointment, “traffic stop regulations,” at the Cheshire Police Department. It is found, based upon the complainants’ uncontroverted testimony, that the request was denied by a police department captain on the ground that staff was “too busy.”
13. Although the complaint in this matter names the PSC and the town as respondents, and not the police department, the respondents did not object to the testimony, described in paragraph 11, above. Based upon the testimony of the chief of police at the hearing in this matter, it is found that neither the police department nor the PSC maintains any record responsive to this request.
14. Based upon the facts and circumstances of this case, it is found that the respondents did not violate the FOI Act as alleged in paragraph 2(c), above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondents shall recreate, if necessary, and file, the minutes and agendas of the 2009 and 2010 PSC meetings that, at the time of the hearing in this matter, were not on file with the town clerk.
2. Henceforth, the respondents shall continue to timely file the agendas and minutes of their meetings with the town clerk in accordance with §1-225, G.S.
3. Forthwith, the respondents shall contact the Freedom of Information Commission and arrange for a training session to be conducted by a member of the Commission staff.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 2013.
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:
Cynthia A. Kleist and Derf J. Kleist
251 Lancaster Way
Cheshire, CT 06410
Public Safety Commission, Town of
Cheshire; and Town of Cheshire
c/o Alfred E. Smith, Jr., Esq.
Murtha Cullina LLP
2 Whitney Avenue
New Haven, CT 06510
Cynthia A. Cannata
Acting Clerk of the Commission