FOI DECISIONS
DOCKET # FIC 2007-030
COMPLAINANT - Frank A. Loda
RESPONDENTS - Robert Koskelowski - 1st Selectman, Town of Seymour
August 30, 2007
The above-captioned matter was heard as a contested case on June 19, 2007, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and arguments on the complaint. This matter was consolidated for hearing with Docket #FIC 2007-116, Frank A. Loda v. Robert J. Koskelowski, First Selectman, Town of Seymour, and Board of Selectmen, Town of Seymour.
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 letter of complaint, dated January 5, 2007, and filed on January 10, 2007, , the complainant appealed to the Commission alleging that the respondent failed to comply with the Commission's orders in contested case Docket #FIC 2005-617, Frank A. Loda v. Robert J Koskelowski, First Selectman, Town of Seymour, et al. ("Docket #FIC 2005-617").
(3) Specifically, the complainant alleges that, at the January 2, 2007 regular meeting of the Board of Selectmen (the "January 2, 2007 meeting"), the respondent "ordered" him "to video tape from the back of the room", which order "countermanded the Freedom of Information Commission's...December 13th rulings that declared the town's policies null and void." In his complaint, the complainant seeks a civil penalty against the respondent.
(4) The Commission's order in Docket #FIC 2005-617 was issued on December 13, 2006, and stated, in relevant part, the following:
"2. The respondent board's policy regarding videotaping of public meetings adopted at the December 21, 2005 meeting is declared null and void.
3. The respondent board shall forthwith implement a policy that is in keeping with the requirements of 1-226, G.S."
(5) The policy of the respondent board at issue in Docket #FIC 2005-617 required:
a. all video cameras be set up in the back of the room;
b. any videotape made of a public meeting must be a complete tape of such meeting and if to be aired on Public Access television, must be aired in its entirety and not edited;
c. if a citizen speaking during the public portion of a meeting did not wish to be videotaped, then the tape recorder would have to be turned off.
(6) The decision in Docket #FIC 2005-617 was appealed to the superior court on February 9, 2007, and presently is pending. It is found that the respondent did not apply for a stay of the Commission's decision in that case, pending the outcome of such appeal. It is therefore found that, as of the January 2, 2007 meeting, the Commission's order in Docket #FIC 2006-617, as described in paragraph 4, above, was in full force and effect.
(7) With respect to the order, described in paragraph 4, above, the respondent conceded, at the hearing in this matter, and it is found that, prior to the start of the January 2, 2007 meeting, he ordered the complainant to videotape from the back of the room, and that the complainant did, in fact, videotape from the back of the room. He further conceded, and it is further found that, the board has not implemented a policy regarding videotaping that is in keeping with the requirements of 1-226, G.S.
(8) At the hearing in this matter, the respondent asserted that: (a) he ordered the complainant to videotape from the back of the room because the complainant's location at the front of the room was blocking a fire exit; (b) as of the January 2, 2007 meeting, he had not yet received a copy of the Commission's decision in Docket #FIC 2005-617; and (c) he was under the mistaken impression that once such decision was appealed, he was under no obligation to comply with orders contained in such decision.
(9) The respondent's assertions regarding compliance with the Commission's decision in Docket #FIC 2005-617, are disingenuous. First, if the respondent intended to comply with the Commission's order in Docket #FIC 2005-617, described in paragraph 4, above, yet was truly concerned about a fire code violation, the respondent could have discussed his concerns with the complainant, and worked with the complainant to find an alternative position in the room that would both accommodate the complainant's right to videotape the public meeting, and be in compliance with the fire code. It is found that no such discussion took place.
(10) Second, regarding the respondent's claim that he was not obligated to comply with the order, described in paragraph 4, above, either because he had not received a copy of it or because he thought that an appeal of such decision relieved him of the obligation to comply with such order, it is found that the respondent was present at the Commission meeting in December 2006, at which the hearing officer's report in Docket #FIC 2005-617, containing the order at issue, was approved by the full Commission. It is therefore found that, on January 2, 2007, he was fully informed, and aware of, the Commission's order in that case. Moreover, as noted in paragraph 6, above, as of January 2, 2007 meeting, the respondent had not yet appealed the decision of the Commission and was therefore obliged to comply with the order contained therein.
(11) Based upon the record in this matter, it is found that the respondent simply disregarded the Commission's order, described in paragraph 4, above.
(12) It is therefore concluded that the respondent failed to comply with the Commission's order, described in paragraph 4, above, as alleged in paragraphs 2 and 3, above.
(13) With respect to the complainant's request for the imposition of a civil penalty, 1-206(b)(2), G.S. provides, in relevant part:
...upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
(14) It is found that the respondent is the official directly responsible for ensuring compliance with the Commission's order, described in paragraph 4, above.
(15) It is also found that the respondent's failure to comply with the Commission's order, described in paragraph 4, above, was without reasonable grounds.
The following order by the Commission is hereby recommended on the basis of the record concerning the above captioned complaint:
(1) Forthwith, the respondent shall remit a civil penalty in the amount of $500 to this Commission.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 22, 2007.
Petrea A. Jones
Acting Clerk of the Commission
Paid for and Authorized by the Seymour Democratic Town Committee