FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Martin A. Badinelli, Sr.,
		Complainants
	against		Docket #FIC 2000-512
Survey Sub-Committee, Board of Education, New Milford Public Schools; and Board of Education, New Milford Public Schools,
		Respondents	July 11, 2001

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 2000-458; Betty Najm v. Superintendent of Schools, New Milford Public Schools; and Survey Sub-Committee, 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 consolidated with Docket #FIC 2000-511; Martin A. Badinelli, Sr. v. Superintendent of Schools, New Milford Public Schools, was heard as a contested case, and, at such time, the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The case caption has been amended to accurately reflect the designation of the respondent sub-committee.   

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The Commission takes administrative notice of the record and final decision in Docket #FIC 2000-458; Betty Najm v. Superintendent of Schools, New Milford Public Schools; and Survey Sub-Committee, Board of Education, New Milford Public Schools.

            2.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

3.  By letter dated September 13, 2000 and filed with the Commission on September 15, 2000, the complainant alleged that a closed executive session of the respondent sub-committee violated the Freedom of Information [hereinafter “FOI”] Act.  The complainant further alleged that the respondent sub-committee’s failure to notify the public that such executive session ended also violated the FOI Act. 

 

      4.  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….

 

5.  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.  

 

6.  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.

 

7.  It is also found that, as a result of the controversy described in paragraph 5, above, the New Milford Superintendent of Schools [hereinafter “the superintendent”] prepared a document for the members of the respondent board regarding his investigation into the reasons for conducting the survey among the students [hereinafter “the report”]. 

 

8.  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”]. 

 

9.  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.”

 

10.  It is found that, during the meeting described in paragraphs 8 and 9, above, the respondent sub-committee entered the session for the stated purposes of “personnel” and discussing threatened litigation.

 

11.  It is found that the 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. 

 

12.  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 6, 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. 

 

13.  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 complainant under cover letter dated December 1, 2000.  It is further found that the finalized version contains inconsequential changes to the report, as well as exhibits not viewed by the respondent sub-committee during the session, including a copy of the survey itself, a grant application, and a consultant invoice. 

 

14.  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.

 

15.  Section 1-200(6), G.S., defines “executive session” to include:

 

…a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;…and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

16.  Section 1-200(8), G.S., defines “pending claim" to mean “a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”

 

            17.  It is found that the newspaper articles and the offer described in paragraph 6, above, do not constitute “written notice” to the respondents within the meaning of §1-200(8), G.S.   Accordingly, it is concluded that the lawsuit described in paragraph 6, above, was not a “pending claim” within the meaning of such provision. 

 

18.  The respondents also contend that the report was a preliminary draft within the meaning of §1-210(b)(1), G.S., that it was therefore exempt from mandatory disclosure, and that the respondent sub-committee properly discussed it during the session. 

 

19.  Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure...”

 

20.  It is found that the respondents failed to present evidence, and therefore failed to prove, that they had determined that the public interest in withholding the report clearly outweighed the public interest in its disclosure at the time of the session, within the meaning of §1-210(b)(1), G.S.

 

21.  Moreover, §1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

 

                        [Emphasis added.]

 

22.  It is found that, at the time of the session, the report was not a preliminary draft within the meaning of §1-210(b)(1), G.S.  It is also found that, at such time, the report was a report comprising part of the process by which governmental decisions and policies are formulated.  It is further found that the report was not a preliminary draft of a memorandum subject to revision prior to submission to or discussion among the members of the respondent sub-committee within the meaning of §1-210(e)(1), G.S. 

 

23.  It is concluded, therefore, that the report was not exempt from mandatory disclosure at the time of the session.  It is also concluded that the session was not properly held within the meaning of §1-200(6)(B) or (E), G.S., as maintained by the respondents.  It is further concluded that the respondent sub-committee violated §1-225(a),G.S., by holding such session. 

 

24.  It is found that the respondent sub-committee did not invite the public back into the meeting room after it ended the session, and that, rather, the sub-committee immediately voted to adjourn.  It is found that the respondent sub-committee’s failure to invite the public back into the meeting room to witness the adjournment was inconsistent with the spirit of the FOI Act.   

 

25.  It is found that the violation described in paragraph 23, above, was that of the respondent sub-committee and not that of the respondent board.  Accordingly, it is concluded that the respondent board did not violate the FOI Act, as described in paragraph 23, above. 

 

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

 

            1.  Forthwith, the respondent sub-committee shall amend the minutes of its August 15, 2000 meeting to reflect the discussion held during the session.

 

            2.  Henceforth, the respondent sub-committee shall strictly comply with §1-225(a),G.S.

 

            3.  The complaint against the respondent board is hereby dismissed.

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of July 11, 2001.

 

 

_________________________________________

Petrea A. Jones

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:

 

Martin A. Badinelli, Sr.

30 Chapin Road

New Milford, CT 06776

 

Survey Sub-Committee,

Board of Education, New Milford

Public Schools; and Board of

Education, New Milford

Public Schools

c/o Lawrence Campane, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT 06105

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2000-512/FD/paj/07/16/2001