FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Jay Lewin,
		Complainants
	against		Docket #FIC 2001-532
Ethics Commission, Town of New Milford,
		Respondents	November 13, 2002

 

The above-captioned matter was heard as a contested case on April 19, 2002, at which time the complainant 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 public agency within the meaning of §1-200(1), G.S.

 

2.  It is found that on or about August 20, 2001, the complainant filed an ethics complaint with the respondent against David N. Hubbard, a town employee, alleging the use of confidential information pertaining to development plans for neighboring commercial property in connection with his decision with a partner to purchase the property located at 125 Danbury Road through an entity known as Chase Morgan Development, LLC.

 

3.  It is found that on November 8, 2001, the respondent found probable cause that Hubbard may have violated a provision of the New Milford Code of Ethics.

 

4.  It is found that by letter dated November 30, 2001, the complainant requested that the acting chairman of the respondent permit him to inspect the entire record and file in the Hubbard matter (hereinafter “requested records”).

 

5.  Thereafter, by letter dated and filed December 3, 2001, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a)      denying him access to inspect the requested records;

b)      failing to file any motions or minutes of its meetings in the Town Clerk’s Office as of December 3, 2001; and

c)      if a vote was taken on the probable cause determination, failing to vote in public and not in “executive session”.

 

6.  By letters dated January 29 and February 2, 2002, the complainant and the respondent, respectively, informed the Commission that they had narrowed the issues in this case and the sole outstanding issue to be resolved is whether certain  “writings” that were made by the respondent’s Acting Chairman, during meetings of the respondent are records of the respondent subject to disclosure under the FOI Act, or personal notes of a member not subject to disclosure under the FOI Act, or are “public records” subject to such Act, but exempt pursuant to §1-210(b)(1), G.S.   However, at the hearing in this matter, the complainant indicated that the issues outstanding are all those that were raised in his complaint.  Therefore, the issues that will be addressed are those as described in paragraph 5a, 5b and 5c, above.  The parties also informed the Commission that they agreed that the Commission should conduct an in camera inspection of the “writings” at issue.

 

7.  The respondent first contends that the complaint should be dismissed for lack of jurisdiction because the issues raised pertain to an investigation of an ethics complaint, a matter subject to §§7-148h and 1-82a, G.S., and not the FOI Act.  In support of its position the respondent relies on the Commission’s decision in contested case docket # FIC 2001-056, George C. Finley et al. v. State Ethics Commission, State of Connecticut, October 10, 2001 (hereinafter “Finley”).

 

8.  Section 7-148h, G.S., in relevant part, provides:

(a) Any town … may, by charter provision or ordinance, establish a … commission …to investigate allegations of unethical conduct … levied against any official, officer or employee of such town … The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct … to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause…. 

[Emphasis added.]

9.  Section 1-82a, G.S., provides:

(a) Unless the commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent. A commission evaluation of a possible violation of this part prior to the filing of a complaint by the commission shall be confidential except upon the request of the subject of the evaluation. If the evaluation is confidential, any information supplied to or received from the commission shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by a commission or staff member. No provision of this subsection shall prevent the Ethics Commission from reporting the possible commission of a crime to the Chief State's Attorney or other prosecutorial authority.

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.

(c) Not later than three business days after the termination of the investigation, the commission shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The commission shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.

(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its finding and a summary of its reasons therefor.

(e) The [Ethics] commission shall make public a finding of probable cause not later than five business days after the termination of the investigation. At such time the entire record of the investigation shall become public, except that the commission may postpone examination or release of such public records for a period not to exceed fourteen days for the purpose of reaching a stipulation agreement pursuant to subsection (c) of section 4-177.

[Emphasis added.]

10.  It is found that the respondent held a series of meetings between September 4 and November 19, 2001 during which it conducted an ethics investigation into the alleged ethical misconduct, as described in paragraph 2, above (hereinafter “investigation”).

 

11.  It is found that the investigation was convened and conducted confidentially as permitted by §§7-148h and 1-82a, G.S.  Consequently, the meetings held in conjunction with such investigation were not open to the public and witnesses who were interviewed were told that their statements would be held in confidence.

 

12.  It is found that while this Commission concluded in Finley that the ethics investigation “meeting” that was held in “closed session” was not a “meeting” convened pursuant to the FOI Act, but convened pursuant to the ethics statutes governing the State Ethics Commission [§§1-82a(a) and 1-93a(e), G.S] and therefore, the FOI rules concerning discussions in public did not apply, Finley did not address one of the issues raised here in paragraph 5a, above, namely, whether records created in connection with an ethics investigation are subject to the FOI Act.  Further Finley only indirectly addressed the allegations in that case concerning failure to properly prepare minutes and votes by concluding that such allegations were untimely as they were not raised in the complaint and only surfaced during the FOI hearing and in a post-hearing brief filed by the complainants.  Therefore those issues concerning minutes and votes were found to be not properly before the Commission.  In this complaint however, the issues raised by the complainant concerning minutes and voting in executive session, described at paragraph 5b and 5c, were timely raised.

 

13.  It is therefore concluded that the Commission has jurisdiction to address all of the issues raised by the complainant in his complaint.  The respondent’s motion to dismiss is therefore, denied.

 

14.  With respect to the allegation described at paragraph 5a, above, and upon review of §§7-148h and 1-82a, G.S., and also the FOI Act’s definition of “public records” it is concluded that nothing in §§7-148h and 1-82a, G.S, excludes records that are created in connection with an ethics investigation from the “public records” definition set forth in the FOI Act.

 

15.  Section 1-200(5), G.S., broadly defines “public records” as follows:

 

Public records or files means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

            16.  Section 1-200(1), G.S., in relevant part, defines  "public agency" as:

 

(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions….

 

17.  It is found that the “writings” at issue are certain handwritten notes made by the respondent’s acting chairman during the investigation meetings and during one telephone conversation, as well as draft probable cause findings.[1]  It is found that the respondent’s acting chairman wrote the notes in anticipation of, or in the event, a public evidentiary hearing became necessary.[2]  Although not verbatim, the notes contain a summary or condensation of witnesses’ testimonies, the impressions of the respondent’s acting chairman with respect to credibility of witnesses, and his theories regarding potential impropriety.

 

18.  It is found that the notes are a record of the official business of the respondent in that they were created for the purpose of serving as an accurate record of the investigation proceedings and witnesses’ testimonies, if later needed by the respondent in connection with an evidentiary hearing.

 

19.  Therefore, it is concluded that such notes are recorded data or information relating to the conduct of the public's business, prepared, used, and retained by a public agency, within the meaning of §1-200(5), G.S., and are therefore, “public records”.  It is also concluded that the draft probable cause findings are “public records” within the definition and meaning of §1-200(5), G.S.

 

20.  Section 1-210(a), G.S., provides, in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.  [Emphasis added.]

 

21.  Following the hearing in this matter, the respondent submitted the records at issue to the Commission for an in camera inspection (hereinafter “in camera records” or “writings”).  The in camera records consist of 62 pages, which have been marked as IC2001-532-01 through 2001-532-062, inclusive, for identification purposes.

 

22.  It is found that the respondent disclosed what it determined to be “the record” of the investigation within the meaning of §1-82a(e), G.S., on or about January 18, 2002 however, the respondent did not disclose the “writings” at issue as a part of “the record”. 

 

23.  With respect to the respondent’s §1-210(b)(1), G.S., claim of exemption, such provision permits the nondisclosure 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.

 

24.  Section 1-210(e), G.S., further provides: “[n]otwithstanding the provisions of … [§1-210(b)(1), G.S.], disclosure shall be required of:

(1)  Interagency 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.

25.  In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).

26.  It is found that the in camera records are “preliminary drafts and notes” within the meaning of §1-210(b)(1), G.S.

27.  It is also found that the respondent determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

28.  It is further found that the in camera records are not subject to disclosure pursuant to §1-210(e)(1), G.S.

 

29.  Consequently, it is concluded that the in camera records are exempt from public disclosure pursuant to §1-210(b)(1), G.S., and therefore, the respondent did not violate §1-210(a), G.S., when it failed to provide the complainant with a copy of such records.

 

30.  With respect to the allegation as described in paragraph 5b, above, §1-210(a), G.S., provides, in relevant part:

 

Each … [public] agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located …. 

 

31.  Section 1-225(a), G.S., in relevant part, further provides that “minutes shall be available for public inspection within seven days of the session to which they refer.”

32.  It is not discernable from the record whether the respondent has “an office or place of business” and therefore, is required according to §1-210(a), G.S., to keep and maintain its records, which include minutes, at such office or whether the respondent is without an office or place of business, and therefore required to keep and maintain its records at the town clerk’s office.  This is a threshold fact that needs to be determined in order to address the complainant’s allegation that the respondent failed to file any motions or minutes of its meetings in the town clerk’s office as of December 3, 2001 because if the respondent maintains its own office or place of business, then its minutes are appropriately filed in such office and not at the town clerk’s office. [3]  In addition, if the respondent’s minutes were on file within its own office or place of business, then such office would have been the appropriate place to which the complainant should have directed any requests for the respondent’s minutes.  The evidence in the record suggests that the complainant requested minutes of the respondent’s investigation meetings from the town clerk’s office.  There is no evidence in the record that the complainant directed his request for the minutes in question to the respondent and that the respondent failed to make such minutes available within the statutory time frame permitted.

33.  It is therefore concluded that if the respondent does not maintain an office or place of business, then as of December 3, 2001 the respondent failed to have available for public inspection at the town clerk’s office, the minutes of the investigation meetings held on October 23, 25, 26, 30, November 7, 8, 12 and 19, 2001. 

34.  However, it is also concluded that if the respondent maintains an office or place of business, then the complainant failed to demonstrate that he requested of the respondent, and was denied access to inspect the minutes within seven days of the investigation meetings in question. 

35.  With respect to the complainant’s contention that the in camera records constitute “minutes” of the respondent, it is found that such records are not minutes and further that the respondent prepared official minutes of its investigation meetings.

36.  With respect to the allegation as described in paragraph 5c, above, it was already found in finding 11, above, that the respondent’s investigation meetings held between September 4 and November 19, 2001 were permissively convened and conducted pursuant to §§7-148h and 1-82a, G.S., in private.  It is also found that the respondent’s vote in private on the issue of probable cause was permissible pursuant to the confidentiality provisions of §§7-148h and 1-82a, G.S., and therefore the respondent did not violate the executive session provisions of the FOI Act as alleged in the complaint.

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

 

1.  The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 2002.

 

_______________________________________

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:

 

Jay Lewin

PO Box 603

Sherman, CT 06784

 

Ethics Commission,

Town of New Milford

c/o Fred Baker, Esq.

24 Delay Street

Danbury, CT 06810-6698

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-532/FD/paj/11/18/2002