FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                                         FINAL DECISION

 

Deborah J. Petersen and The Hartford Courant,

 

            Complainants

 

                        against                                                       Docket #FIC 88‑354

 

Building Department Investigative Committee of the City of New Britain Common Council,

 

            Respondent                                                           November 30, 1988

 

            The above‑captioned matter was heard as a contested case on September 26, 1988, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with Docket #'s FIC 88‑342, 88‑357, 88‑386 and 88‑387.

 

            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 §1‑18a(a), G.S.

 

            2. The respondent convened in executive session during its meeting of August 25, 1988, and tape recorded that executive session.

 

            3. By letter dated September 2, 1988 and received by the Commission on September 6, 1988, the complainants appealed to the Commission, alleging that the respondent met privately during a recess in its August 25, 1988 meeting, that the executive session described in paragraph 2 above was convened for an impermissible purpose, and that the chairman of the respondent committee denied complainants' request for a tape and transcript of the August 25, 1988 executive session.

 

            4. It is found that the tape recording of the August 25, 1988 executive session is recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by the respondent, and is therefore a public record within the meaning of §1‑18a(d), G.S.

 

Docket #FIC 88‑354                                                                                                      Page 2

 

            5. It is also found that the respondent failed to prove that the tape recording of the August 25, 1988 executive session is exempt from disclosure under the Freedom of Information Act or any other applicable state statute or federal law.

 

            6. With respect to the discussion alleged by the complainant to have occurred during a recess in the August 25, 1988 meeting, it is found that the respondent met privately to the exclusion of the public during said recess to discuss whether to convene in executive session.

 

            7. It is found that the respondent failed to prove that it held such a discussion in compliance with §1‑21(a), G.S., by convening in executive session upon the affirmative vote of two‑thirds of its members present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in §1‑18a(e), G.S.

 

            8. It is also found that the respondent failed to prove that it convened such discussion for a purpose permitted by §1‑18a(e), G.S.

 

            9. It is concluded that the respondent violated §§1‑18a(e) and 1‑21(a), G.S., by convening an illegal executive session during a recess in its August 25, 1988 meeting.

 

            10. The respondent claims that, following the recess, it convened in executive session during its August 25, 1988 meeting to discuss personnel matters relating to the job of Richard Burns, an employee of the New Britain building department.

 

            11. It is found that the respondent has the authority only to investigate the facts concerning how two condominium projects were partially built without building permits being granted; report those facts to the New Britain Common Council, the mayor and the building department; and offer recommendations for ameliorating the situation.

 

            12. It is found that the respondent convened in executive session at its August 25, 1988 meeting to elicit testimony from the employee in question, who refused to testify in public, on the policies and procedures of the city building department.

 

            13. It is further found that the respondent did not convene in executive session to discuss or evaluate the performance of the individual employee being questioned.

 

            14. It is concluded, therefore, that the respondent violated §§1‑18a(e) and 1‑21(a), G.S., by convening in executive session for an impermissible purpose.

 

            The following order of the Commission is hereby recommended on the basis of the record concerning the above‑captioned complaint:

 

Docket #FIC 88‑354                                                                                                      Page 3

 

            1. The respondent shall forthwith provide to the complainants a tape recorded copy of the tape recording of the August 25, 1988 executive session, the cost of said copy to be borne by the respondent.

 

            2. The respondent henceforth shall act in strict compliance with §§1‑18a(e) and 1‑21(a), G.S.

 

            Approved by order of the Freedom of Information Commission at its special meeting of November 30, 1988.

 

                                                                                                   

                                                                             Catherine H. Lynch

                                                                             Acting Clerk of the Commission