FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was consolidated for hearing with Docket #FIC 2002-313, and heard as a contested case on November 8, 2002, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  By letter dated July 10, 2002 and filed with the Freedom of Information Commission (“Commission”) on July 16, 2002, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by: 1) “not providing copies of all public records requested” concerning a tax assessment agreement between the Town of Wallingford and Bristol-Myers Squibb, Co. (“Bristol-Myers”), following written requests to the respondent Mayor and the Town Counsel on June 26, 2002 and to the respondent Chairman on July 3, 2002; and by 2) holding an illegal executive session of the respondent Town Council on June 25, 2002, in order to discuss the same tax assessment agreement with Bristol-Myers. The complainants also requested that the June 25, 2002 vote of the respondent Town Council, authorizing the respondent Mayor to execute the tax agreement, be declared null and void, and that other appropriate relief be granted, but not including a civil penalty.

 

3.  As more specifically detailed at the hearing, the complainants allege, concerning their records requests, that the respondent Chairman, the respondent Mayor and the Town Counsel did not provide them with copies of: 1) a letter by the Town Counsel to the respondent Mayor dated May 14, 2002 (Exhibit J of the complaint); 2) another letter by the Town Counsel to the respondent Mayor dated June 3, 2002 (Exhibit L of the complaint); 3) a memorandum by the Comptroller, respondent Mayor, and respondent Chairman dated June 6, 2002 to complainant Brodinsky (Exhibit M of the complaint); and 4) another letter by the Town Counsel to the respondent Mayor dated June 17, 2002 (Exhibit P of the complaint). Additionally, the complainants allege that the respondent Chairman received and maintained many public records in his custody and control at his home, and not at his “regular office or place of business in an accessible place”, as required by §1-210(a), G.S.

 

4.  It is found that both complainants are themselves members of the respondent Town Council, and in such capacity, had received, prior to making the three records requests, most, if not all, of the four records enumerated in paragraph 3, above. The respondent Chairman, the respondent Mayor and the Town Counsel were aware at the times they received the complainants’ requests for records that the complainants had previously received general mailings to the respondent Town Council as well as records that they themselves had previously sent to the complainants.

 

5.  It is also found that the respondent Mayor, the Town Counsel, and the respondent Chairman provided records from their file or files concerning the relevant tax assessment agreement with Bristol-Myers, but did not search for records within the scope of the request that were filed in their offices under other subjects, such as files relating to meetings of the respondent Town Council.

 

6.  It is also found that the respondent Chairman has adopted a practice since 1997 of receiving and maintaining public records in his custody and control at his home, rather than at the office of the respondent Town Council. There was substantial evidence that this practice has included keeping original records at his home and not just copies of records for which the originals are on file at the office of the respondent Town Council.

 

7.  Sections 1-200(6)(B) and 1-200(9), G.S., respectively, authorize executive sessions of meetings for discussion of “strategy and negotiations with respect to pending claims or pending litigation”, and define “pending litigation” to include “the agency’s consideration of action to enforce or implement legal relief or a legal right”.

 

8.  It is found that the legislative history, helpfully provided by the complainants with their brief, includes positive reference to the “ability to negotiate a settlement without the need for litigation.” Rep. Kiner, House of Representatives, May 1, 1991, p. 3877. This language suggests a desire to allow executive sessions in circumstances where a lawsuit is clearly contemplated. A question in this proceeding, then, is whether there is substantial evidence that the respondents were in clear contemplation of being party to a lawsuit when they held the June 25, 2002 executive session.

 

9.  It is found that Bristol-Myers is the largest taxpayer to the Town of Wallingford, and that the town entered into a tax assessment agreement with Bristol-Myers in 1983. The relevant question under consideration at the June 25, 2002 meeting of the respondent Town Council was whether to approve a proposed construction project called the “E-F Node addition” for coverage within the terms of the 1983 tax assessment agreement.

 

 10.  It is found that the motion made to hold an executive session at the June 25, 2002 meeting of the respondent Town Council expressly cited §1-200(6)(B), G.S., as the reason for the executive session and carried on a 7 to 2 vote, which was more than two-thirds of the members present and voting.

 

11.  It is also found that an executive session was held at the June 25, 2002 meeting of the respondent Town Council (the “executive session”). The executive session lasted about thirty-four minutes and was followed by a public discussion of the tax assessment agreement with Bristol-Myers for an additional one hour and forty-five minutes. Following these private and public discussions, there was a vote to authorize the respondent Mayor to execute the tax assessment agreement.

 

12.  It is also found that the primary discussion during the executive session involved the Town Counsel advising the members of the respondent Town Council that it was her opinion that a judgment would be entered against the town in a legal action in court that she believed Bristol-Myers would certainly commence, in the event that the respondent Town Council declined to approve coverage for the E-F Node addition project under the 1983 tax assessment agreement. The Town Counsel also advised members of the respondent Town Council of her view that the fact that the building and the parking lot for the “E-F Node addition” were physically separated did not make them separate projects for purposes of the 1983 tax assessment agreement. Finally with reference to the facts of the executive session, layperson members of the respondent Town Council made, in the two-way discussion, some general remarks concerning Bristol-Myers as a corporate citizen. 

 

13.  It is found that it would have been highly prejudicial to the Town of Wallingford, in defending a prospective lawsuit, if its own Town Counsel had stated at a public meeting of the respondent Town Council, for inclusion in the minutes of that meeting, that her client would lose a lawsuit brought by Bristol-Myers, in the event that the respondent Town Council declined to approve coverage for the proposed project under the 1983 tax assessment agreement. In a similar fashion, it would also have been highly prejudicial to the Town of Wallingford, in defending a prospective lawsuit, if its own Town Counsel had stated for inclusion in the minutes her view that the physical separation of the building and the parking lot for the “E-F Node addition” did not make them separate projects for purposes of the 1983 tax assessment agreement.

 

 14.  Based upon these findings, it is concluded that the respondents technically violated the requirements of §1-210(a), G.S., when they failed to provide the complainants with copies of the records enumerated in paragraph 3, above. Though the complainants had most probably received previous copies of these records as members of the respondent Town Council, the omission of some records in a disclosure raises the question of whether other more meaningful records might also have been omitted, even if such omission occurs inadvertently as a result of a hasty search.

 

15.  It is concluded that, by receiving and keeping many records at his home, the respondent Chairman also violated the additional requirement of §1-210(a), G.S., “to keep and maintain all public records in …[his] custody at …[his] regular office or place of business in an accessible place”.   

            

16.   It is concluded that, at the executive session, the Town Council was considering “action to … implement legal relief”, as that term is utilized by §1-200(9), G.S. This legal relief was relief from the imminent filing of a law suit that could have  gravely injured the Town of Wallingford, both through the award of money damages against the town and through rupture of the town’s relationship with its largest taxpayer, a corporation which, of course, could choose to locate its facilities in jurisdictions other than the Town of Wallingford. This conclusion is not negated by the fact, discussed at paragraph 12, above, that, during a two-way discussion, layperson members of the respondent Town Council, nearly inevitably, made some general remarks concerning Bristol-Myers as a corporate citizen. 

 

17.  It is also concluded that, at the executive session, the respondent Town Council was discussing “strategy…with respect to… pending litigation”, as that term is utilized by §1-200(6)(B), G.S. This strategy included the Town Counsel’s conclusion that a judgment would be entered against the town in a legal action, in the event that the respondent Town Council declined to approve coverage for the proposed project under the 1983 tax assessment agreement. In similar fashion, this strategy included the Town Counsel’s conclusion that the physical separation of the building and the parking lot for the “E-F Node addition” did not make them separate projects for purposes of the 1983 tax assessment agreement. The respondent Town Council did not wish Bristol-Myers to know that its counsel had reached either of these conclusions, both of which were integral to the strategy of the respondent Town Council.

 

18.  It is also concluded that, at the executive session, the respondent Town Council was discussing “negotiations…with respect to… pending litigation”, as that term is utilized at §1-200(6)(B), G.S. The negotiations included discussions between the Town Counsel and representatives of Bristol-Myers that led the Town Counsel to believe that Bristol-Myers certainly would commence a legal action against the Town of Wallingford, in the event that the respondent Town Council declined to approve coverage for the proposed project under the 1983 tax assessment agreement. The respondent Town Council did not wish to disclose publicly that its counsel believed that Bristol-Myers had indicated that it would commence such a legal action under these circumstances.   

 

19.  Therefore, it is concluded that the executive session held by the respondent Town Council on June 25, 2002 was lawful pursuant to §1-200(6)(B), G.S., and did not violate §1-225(a), G.S.

 

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

 

            1.  Within twenty days, the respondent Chairman shall seek advice from the Town Counsel and restructure his system for maintaining his public records, so that all public records under his custody and control are accessible at his regular place of business, pursuant to the requirements of §1-210(a), G.S.     

 

            2.  Based on the specific facts of this case, no order will be issued in response to the violation found in paragraph 14 of the findings above.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

March 26, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Mike Brodinsky

45 Valley View Drive

Wallingford,CT 06492

 

James Vumbaco

81 High Hill Road

Wallingford, CT  06492

 

Chairman, Town Council, Town of Wallingford;

Town Council, Town of Wallingford; and

Mayor, Town of Wallingford,

c/o Janis M. Small, Esq.

Town Attorney, Town of Wallingford

45 South Main Street

Wallingford, CT 06492

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2000-317FD/abg/03/27/2003