FIC2002-183

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Kathleen McNamara,
		Complainants
	against		Docket #FIC 2002-183
Board of Alderman, City of Waterbury,
		Respondents	December 11, 2002

The above-captioned matter was heard as a contested case on October 1, 2002, at which time the complainant and the respondent appeared 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 §1-200(1), G.S.

2. By letter of complaint, dated April 20, 2002, and filed with the Commission on April 23, 2002, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act with respect to a meeting held by the respondent on March 25, 2002 by:

a. moving the meeting to a location not previously noticed;

b. closing off the public meeting, and then engaging in discussions and conducting agency business in private;

c. failing to make minutes available for public inspection within seven days; and

d. preventing the broadcast by Public Access Television of the portion of the meeting that was moved to the caucus room and held in private.

The complainant requested in her complaint that any decisions made during the portion of the meeting from which the public was precluded be declared null and void and that the respondent receive training in FOI matters.

3. It is found that the respondent held a regular meeting on March 25, 2002, (hereinafter “meeting”).

4. It is found that during the meeting the respondent assigned an agenda item to the “Committee of the Whole” (hereinafter “committee”).

5. It is found that under Robert’s Rules of Order, the committee is defined as the entire membership of the whole body, which in this case is the entire membership of the respondent.

6. It is found that the respondent then voted to move into committee, thereby leaving the Aldermanic Chambers (where it had convened the public meeting) and moving to the caucus room.

7. It is found that the caucus room is just outside of and adjacent to the Aldermanic Chambers and such room was not locked or closed off from the public.

8. It is found that while in the caucus room a quorum of the respondent (fourteen of its fifteen members) met in their capacity as the “committee”, held discussions and decided to recommend to the respondent that with respect to certain downtown projects (as described in Alderman Peter Tirado’s letter of March 25, 2002 to the respondent) questions be submitted to the Naugatuck Valley Development Corporation for responses and also that Michael O’Connor be invited to address the respondent on the progress of the projects.

9. It is found that per Robert’s Rules of Order the committee’s proceedings were not entered in the respondent’s minutes.

10. Section 1-225(a), G.S., provides:

The meetings of all public agencies … shall be open to the public. The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer. [Emphasis added.]

11. Section 1-200(1), G.S., defines “public agency” to include:

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….[Emphasis added.]

12. Section 1-200(2), G.S., in relevant part defines “meeting” as:

any … 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.

13. It is concluded that the committee is a “public agency” within the definition and meaning of §1-200(1), G.S.

14. It is further concluded that the committee’s proceedings conducted in the caucus room constituted a “proceeding of a public agency” and “a convening or assembly of a quorum of a multimember public agency”, as well as “communication by or to a quorum of a multimember public agency” within the meaning of §1-200(2), G.S., and was therefore a “meeting” for purposes of the FOI Act.

15. With respect to the allegation as described in paragraph 2a, above, it is concluded that by moving the meeting from the Aldermanic Chambers to the caucus room the respondent did not violate any provision of the FOI Act. It is not found that the location of the meeting was so radically changed that if a member of the public had shown up at the Aldermanic Chambers to attend the meeting such individual would not be aware that the meeting was in progress in the caucus room. It is found that the caucus room is so closely situated to the Aldermanic Chambers that the move from the latter to the former does not constitute a change in location that would rise to the level of violating an individual’s right under the FOI Act.

16. With respect to the allegation as described in paragraph 2b, above, it is found that the caucus room was not closed to the public in that such room door was neither closed or locked, nor did the respondent state to those in attendance at the meeting that they could not be present during the caucus room discussions. It appears however, that once the respondent voted to go into “committee” and walked to the caucus room those present at the meeting assumed that the caucus room meeting was private and therefore did not exercise their right to attend the caucus room discussions. There is no evidence that any member of the public attempted to attend the caucus room meeting and that the respondent denied them access to such room.

17. With respect to the allegation concerning minutes as described in paragraph 2c, above, it has already been concluded that the committee is a “public agency”. Accordingly, when such committee meets it is required to conduct its business in accordance with the provisions of the FOI Act.

18. It is found that the committee did not prepare minutes of the March 25, 2002 caucus room proceedings.

19. It is also found that Robert’s Rules do not supersede the provisions of the FOI Act.

20. It is concluded that the portion of Robert’s Rules of Order, pertaining to minutes, whereby the committee’s proceedings are not recorded in the respondent’s minutes, is in direct conflict with the §1-225(a), G.S., which provides that “minutes [of all public agencies] shall be available for public inspection within seven days of the session to which they refer”, and also §1-210(a), G.S., which requires that all public agencies “shall make, keep and maintain a record of the proceedings of its meetings.”

21. It is therefore concluded that by failing to prepare and to have minutes of the caucus room committee proceedings available for public inspection within seven days of the March 25, 2002 meeting, the respondent violated §1-225(a), G.S.

22. It is also found that the respondent does have some informal handwritten notations apparently made during the committee’s caucus room discussions. However, it is concluded that such informal handwritten notations do not constitute, and are not a substitute for minutes as required by §1-225(a), G.S.

23. With respect to the allegation as described in paragraph 2d, above, the complainant contends that the sudden and unpublicized move of the meeting from the Aldermanic Chambers to the caucus room precluded Public Access Television from conducting a live broadcast of the caucus room proceedings.

24. Section 1-226, G.S., provides that:

(a) At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-225, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. Any recording, radio, television or photographic equipment may be so located within the meeting room as to permit the recording, broadcasting either by radio, or by television, or by both, or the photographing of the proceedings of such public agency. The photographer or broadcaster and its personnel, or the person recording the proceedings, shall be required to handle the photographing, broadcast or recording as inconspicuously as possible and in such manner as not to disturb the proceedings of the public agency. As used herein the term television shall include the transmission of visual and audible signals by cable.

(b) Any such public agency may adopt rules governing such recording, photography or the use of such broadcasting equipment for radio and television stations but, in the absence of the adoption of such rules and regulations by such public agency prior to the meeting, such recording, photography or the use of such radio and television equipment shall be permitted as provided in subsection (a).

25. It is found that it takes approximately five to eight minutes for those filming to disassemble and move their camera equipment from the Aldermanic Chambers to the caucus room. It is also found that it is more convenient for Public Access Television to film and broadcast from the Aldermanic Chambers than from the caucus room.

26. As was found in finding 16, above, the caucus room was not locked or closed to the public. It is also found that the respondent did not state to those conducting the live broadcast for Public Access that filming and broadcast of the caucus room proceedings was not permitted. Again, it appears that once the respondent voted to go into “committee” and walked to the caucus room those filming for Public Access assumed that the caucus room meeting was private and therefore, did not exercise their right to film and broadcast the caucus room proceedings.

27. It is also found that the respondent, being fully aware that a live broadcast of its public meeting was in progress did not indicate to those filming that it would delay its proceedings for the five to eight minutes necessary to facilitate the setting up of the equipment. This lack of consideration on the part of the respondent suggests that its members were not at all concerned that the live broadcast had been interrupted.

28. It is concluded that although there is no evidence that those filming for Public Access were expressly denied access or barred by the respondent from filming in the caucus room, the respondent’s lack of consideration by simply moving the meeting from one room to the next suggests that perhaps the respondent may have intended that the caucus room proceedings be private and therefore not filmed. However, without any evidence that the respondent barred entry to the caucus room proceedings, it is concluded that the respondent did not violate §1-226, G.S. It is further concluded however, that the respondent’s actions were certainly not in keeping with the spirit of openness embodied in the FOI Act.

29. In light of the foregoing it is concluded that a null and void remedy is not an appropriate remedy in this matter.

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

1. With respect to the allegation concerning minutes, as described in paragraph 2c of the findings, above, henceforth, the respondent shall strictly comply with the minutes provisions of §§1-210(a) and 225(a), G.S.

2. With respect to the allegations as described in paragraph 2a, 2b and 2d of the findings, above, the complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 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:

Kathleen McNamara

30 Newton Terrace

Waterbury, CT 06708

Board of Aldermen,

City of Waterbury

c/o Dan Shaban, Esq.

Office of the Corporation Counsel

236 Grand Street

Waterbury, CT 06702

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-183/FD/paj/12/13/2002