FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Betty Najm, |
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Complainants |
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against |
Docket # FIC 2000-458 |
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Superintendent of Schools, |
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Respondents |
July 11, 2001 |
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The above-captioned matter was scheduled to be heard as a contested case on February 27, 2001, at which time the complainant and the respondents appeared. For purposes of hearing, this matter was consolidated with Docket #FIC 2000-455; Tiffany Libardi v. Board of Education, New Milford Public Schools; and Docket #FIC 2000-512; Martin A. Badinelli, Sr. v. Survey Sub-committee, Board of Education, New Milford Public Schools; and Board of Education, New Milford Public Schools. At such time, the parties jointly requested that the matter be continued so that settlement of the complaint might be attempted. Such request was granted.
On May 8, 2001, the parties appeared at a continued hearing, having failed to reach the anticipated settlement. For purposes of such continued hearing, this matter was not consolidated with any other matter and was heard as a contested case. At such time, the complainant and the respondents presented testimony, exhibits and argument on the complaint. The case caption has been amended to accurately reflect the designation of the respondent sub-committee. The complainant’s post hearing motions to strike respondents’ exhibit 3 and to reopen the hearing in this matter are hereby denied.
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 e-mail dated and filed with the Commission on August 15,
2000, the complainant alleged that a closed executive session between the
respondent superintendent and the respondent sub-committee, scheduled for 7:00
P.M. on August 15, 2000, would violate the Freedom of Information [hereinafter
“FOI”] Act.
3. By e-mail dated and filed with the Commission on August 18,
2000, the complainant appealed to the Commission, alleging that the
respondents violated the Freedom of Information [hereinafter “FOI”] Act by
convening an executive session on August 15, 2000 for the stated purposes of
reviewing a report written by the superintendent, and discussing strategy and
negotiations regarding pending litigation.
The complainant also alleged that the mayor of New Milford violated the
FOI Act by denying the complainant’s request that the mayor attend the
session as an ex-officio member of the New Milford Board of Education.
However, at the hearing in this matter, the complainant did not present
any evidence with respect to the allegation concerning the mayor.
Accordingly, such allegation shall not be addressed herein.
4. On February 23, 2001, prior to the hearings, and subsequent
to the issuance of the Commission’s Notice of Hearing and Order to Show
Cause in this matter, the complainant filed with the Commission a memorandum
of law in which she alleged that the respondents violated:
a.
§§1-225(c)(d),
G.S., by failing to provide sufficient notice of the session;
b.
§1-225(f),
G.S., by failing to obtain a two-thirds vote to enter the session;
c.
§1-225(a),
G.S., by entering into the session for an improper purpose;
d.
§1-231(a),
G.S., by allowing the respondent superintendent to remain
throughout the entire session;
e.
§1-225(a),
G.S., by failing to timely file adequate minutes for the session;
f.
§1-210(a),
G.S., by failing to disclose documents discussed or presented in the
session;
g.
§1-212(d)(3),
G.S., by charging the maximum fee for copies which should have
been provided free of charge; and
h.
§1-240,
G.S., by willfully destroying public records.
5. At the May 8, 2001, hearing in this matter, the complainant
further alleged that the superintendent’s presence in the session violated §1-231(a),
G.S.
6. It is found, however, that, excepting the allegation
described in paragraph 4.c, above, the allegations set forth in paragraphs 4
and 5, above, were not fairly raised in the August 18, 2000 complaint which is
the subject of this appeal and, therefore, not set forth in the Commission’s
February 5, 2001 Notice of Hearing and Order to Show Cause in this matter.
It is further found that such allegations are untimely as they were not
appealed to the Commission within the thirty-day requirement as set forth in §1-206(b)(1),
G.S. Accordingly, it is concluded
that this complaint is limited to the allegation described in paragraphs 2 and
4.c, above.
7.
Section 1-225(a), G.S., provides, in relevant part that:
[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public….
8. It is found that, in the spring of 2000, the New Milford Public Schools conducted a survey among middle and high school students [hereinafter “the survey”]. It is further found that the survey caused a great deal of controversy in New Milford, and that, among other questions, included in the survey were several questions related to explicit sexual activity, narcotics use, and suicide.
9. It is found that on June 28, 2000, two news articles were published in the News-Times and on the internet as an Associated Press article, indicating that the Rutherford Institute, a Virginia based civil liberties group, intended to bring a class action suit against the New Milford Board of Education. It is also found that, in August 2000, such institute solicited representation from counsel for the New Milford Board of Education with respect to such suit, but counsel declined such offer, citing a conflict of interest. It is further found that, at some point during the survey controversy, the business manager for New Milford came to believe that the town would be sued and notified the town’s insurance agent that a lawsuit regarding the survey might be filed against the town.
10. It is also found that, as a result of the controversy described in paragraph 8, above, the respondent superintendent prepared a document for the members of the New Milford Board of Education regarding his investigation into the reasons for conducting the survey among the students [hereinafter “the report”].
11.
It is found that, on August 15, 2000, the respondent sub-committee held
a special meeting, during which it conducted an executive session [hereinafter
“the session”].
12. It is found that the notice of the August 15, 2000 meeting of the respondent sub-committee reflected an anticipated executive session for the following purposes:
“A. Discussion concerning the Superintendent’s preliminary draft of investigation
B. Impact of investigative report upon threatened litigation.”
13. It is found that, during the meeting described in paragraphs 11 and 12, above, the respondent sub-committee entered the session for the stated purposes of “personnel” and discussing threatened litigation.
14. It is found that the respondent superintendent is not a member of the respondent sub-committee. It is also found that the respondent sub-committee consists of three members of the New Milford Board of Education and that all three members attended the session, which lasted approximately 35 minutes.
15. It is found that, during the session, the respondent sub-committee did not discuss “personnel” issues. It is also found that, during the session, the respondent sub-committee discussed the report with the superintendent, that the superintendent thereupon left the session, and that the respondent sub-committee then discussed the ramifications of the report upon the lawsuit described in paragraph 9, above. It is further found that the only actions taken during the August 15, 2000 meeting of the respondent sub-committee were votes to enter and leave the session, and to adjourn.
16. It is found that the respondents have released the report to the public. It is also found that a finalized version of the report was released to the public in December 2000. It is further found that the finalized version contains inconsequential changes to the report, as well as exhibits not viewed by the respondents during the session, including a copy of the survey itself, a grant application, and a consultant invoice.
17. The respondents contend that the session was properly called for the purposes of discussing strategy and negotiations with respect to a pending claim, and to discuss a preliminary draft that is exempt from mandatory disclosure.
18. Section 1-200(6), G.S., defines “executive session” to include: