FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Judy A. Benson and The Day,
Complainants
against Docket #FIC 93-313
New London Planning and Zoning Commission,
Respondent July 13, 1994
The above-captioned matter was heard as a contested case on February 28, 1994, at which time the complainants and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed November 17, 1993, the complainants appealed to the Commission, alleging that the respondent conducted a November 17, 1993 "workshop" meeting from which the complainant Benson was excluded and for which no notice was filed.
3. It is found that the complainant Benson learned in the course of her reporting for The Day newspaper that two University of Connecticut professors (the "UConn professors") were planning to conduct a research project, called the Eastern Connecticut Health Outreach ("ECHO") project, which would interview intravenous drug users at a location in downtown New London.
4. It is found that Benson, in investigating the ECHO project, also spoke with the New London zoning enforcement officer (the "ZEO"), who at that time knew nothing about the ECHO project.
5. It is found that the ZEO then contacted the two UConn professors, and discussed various zoning concerns with them.
6. It is also found that the ZEO proposed conducting a workshop, to be attended by zoning commission staff, some zoning commission members, town officials such as the city manager and city planner, and the UConn professsors together with any other ECHO staff.
Docket #FIC 93-313 Page 2
7. It is found that Benson learned of the workshop from one of the UConn professors.
8. It is found that the workshop was held on November 17, 1993 in city offices.
9. It is found that the workshop was attended by the chairman and two other members of the respondent Planning and Zoning Commission ("PZ&C), the city manager, the city planner, the ZEO, the two UConn professors, and an ECHO staff person who was to oversee the New London operation.
10. It is found that Benson was informed approximately ten minutes into the workshop that the public was not generally permitted to attend such workshops, but that the respondent would leave the decision about Benson's attendance to the UConn professors.
11. It is found that the UConn professors, noting that it was the consensus of the respondent and its staff that Benson should not attend, asked her to leave.
12. It is found that Benson then left the meeting.
13. The respondent maintains that it did not violate the Freedom of Information ("FOI") Act because: (1) it itself did not deny anyone the right to attend the workshop; (2) there was no application pending before the respondent, and therefore no matter over which it had supervision, control, jurisdiction or advisory power; (3) there was no quorum of the respondent present at the workshop, and those in attendance at the workshop did not constitute a subcommittee of the respondent; (4) the workshop was actually a staff meeting of the planner, ZEO and city manager, and the respondents were present only to observe and lend their opinions as to any issues that should arise.
14. Section 1-18a(b) provides in pertinent part:
"Meeting" means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. "Meeting" shall not include: ... an administrative or staff meeting of a single-member public agency ....
15. Section 1-21(a) provides in pertinent part:
The meetings of all public agencies, except executive sessions as defined in subsection (e) of
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section 1-18a, shall be open to the public.... Notice of each special meeting of every public agency ... shall be 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 ....
16. It is found that the workshop was an early step in the land use approval process, after initial contact with the ZEO, but before the submission of any land use applications to the respondent.
17. It is found that the workshop permitted the ZEO, the planner, the city manager, and the members of the respondent present at the workshop to obtain information from the UConn professors about the use intended by ECHO for the property.
18. It is also found that a principal purpose of the November 17, 1993 workshop was to advise ECHO as to the staff's and the respondent's reactions to the ECHO project; to guide ECHO along the process of gaining necessary permits and approvals; and to expedite the process of obtaining necessary permits and approvals by advising ECHO as to what permits and approvals would likely be, or not be, required.
19. It is found that there also was discussion by the participants about zoning issues generally, such as which uses were permitted by right, which by special permit; and what procedures ECHO needed to follow in securing zoning approval.
20. The complainants maintain that the presence of the three members of the respondent was central to the workshop process, and that that process should be open to the public because it is important for the public to know the opinions of the PZ&C members (and other public officials) about the controversial ECHO project, and what questions they had about it.
21. The respondent in turn maintains that the presence of the three members of the respondent was incidental to the workshop process, which process was conducted by staff members (the ZEO, planner and city manager), and in which the respondent's members only offered their opinions as relevant issues arose. The respondent maintains that such processes may be interesting to the public, but that the day-to-day activities of staff members would come to a halt if all such workshops were required to be open to the public.
22. It is found that a portion of the workshop was conducted exclusively by the planner, the ZEO and the city mananger, to obtain information from ECHO as to its intended use of the property, and to advise ECHO as to the staff's opinion as to what use category under the zoning regulations the projected
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use fell under, and the staff's opinion as to the necessary permits, approvals and procedures.
23. It is concluded that the portion of the workshop conducted exclusively by staff members, in which the respondents did not participate, was a staff or administrative meeting within the meaning of 1-18a(b), G.S.
24. It is also found, however, that the members of the respondent present at the workshop used the workshop as an opportunity to advise the UConn professors about the respondent's likely reaction to the plan generally, and to advise them as to what requirements the respondent might or might not waive.
25. It is also found that the respondent conceded that, had a quorom of its members been present, what transpired at the workshop would have constituted a meeting within the meaning of 1-18a(b), G.S.
26. It is therefore concluded that the portion of the workshop in which the three members of the respondent exercised the respondent's advisory power with respect to the ECHO project was a proceeding, and therefore a meeting, of the respondent.
27. The respondent also maintains that it did not violate the FOI Act, because it was the professors, and not the respondent, who asked Benson to leave.
28. It is concluded that the responsibility for making meetings open to the public belongs to the respondent, and that decisions to close meetings to the public may not be delegated under the FOI Act to private individuals.
29. It is therefore concluded that the respondent violated 1-21(a), G.S., by failing to file a notice of special meeting for its November 17, 1993 workshop, and by failing to keep that portion of the workshop during which the three members of the respondent exercised the respondent's advisory powers open to the public.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondent shall strictly comply with the requirements of 1-18a(b) and 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 1994.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 93-313 Page 5
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:
JUDY A. BENSON and THE DAY
47 Eugene O'Neill Drive
P.O. Box 1231
New London, CT 06320
NEW LONDON PLANNING AND ZONING COMMISSION
c/o Thomas J. Londregan, Esq.
Conway & Londregan, P.C.
38 Huntington Street
P.O. Box 1351
New London, CT 06320-6170
Debra L. Rembowski
Clerk of the Commission