FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The preliminary hearing in this matter was convened pursuant to §1-206(b)(1), G.S., to determine whether there is probable cause to believe that an announced decision of the respondent, or an ongoing practice of the respondent, to meet in executive session is in violation of §§1-200 and 1-225, G.S., and whether the respondent should be temporarily restrained from meeting in executive session for such purpose.   The proceedings in this matter are governed by §1-206(b)(1), G.S., which provides in relevant part:

 

If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing.  If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections 1-200 and 1-225, the agency shall not meet in executive session for such purpose until the commission decides the appeal.  If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision within five days of the completion of the preliminary hearing   

 

The above-captioned matter was heard as a contested case on April 7, 2003, at which time the complainants 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 a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter dated and filed April 4, 2003, the complainants appealed to the Commission, alleging that the respondent City Council of the City of Norwich violated the Freedom of Information (“FOI”) Act by announcing its intention, by its posted agenda, to meet in executive session on April 7, 2003 to discuss waterfront development in the city and, more specifically, a housing development proposal known as “Chelsea Towers.”

 

3.  Specifically, the complainants alleged that the executive session had been posted on the agenda as: “To discuss estimates and evaluations made for NCDC as the city’s Development Agency, and to discuss commercial and financial information given in confidence.”

 

4.  As a remedy, the complainants requested that the Commission order the respondent not to conduct its meeting in executive session until the Commission issues a final decision on this appeal.

 

5.  The complainants maintain that the respondent’s stated purposes for convening in executive session do not fall within any of the reasons permitted for executive sessions under the FOI Act.

 

6.  At the hearing, the respondent represented that it no longer intends to convene in executive session to discuss estimates and evaluations made for NCDC as the respondent City’s development agency.

 

7.  However, the respondent maintains that it is permitted to convene in executive session to discuss commercial and financial information given in confidence, not required by statute.

 

8.  The question whether, under the facts of this case, the respondent is permitted to exclude the public from the executive session at its April 7, 2003 meeting is governed by §§1-225, 1-200(6)(E), 1-200(5),  and 1-210(b)(5)(B), G.S.

 

9.  Section 1-225(a), G.S., provides: “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

10.  Section 1-200(6)(E), G.S., in turn specifically provides that the public may be excluded from a meeting for  “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.”

 

11.  Section 1-200(5), G.S., defines public records or files to mean, in relevant part, “… any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency….”

 

12.  Finally, §1-210(b)(5)(B), G.S., provides that disclosure is not required of  “commercial or financial information given in confidence, not required by statute.”

 

13.  It is found that Norwich Community Development Corporation (“NCDC”) is a non-profit non-stock development corporation that has been designated as the development agency of the City of Norwich, to develop a municipal development plan to create necessary housing, marketing and other reports relative to proposed development at sites including a waterfront site within the City known as “Chelsea Towers.”

 

14.  It is found that NCDC has been engaged for approximately a year, at the initiation of the Mayor of the City of Norwich, and as the agent for the respondent City Council, in discussions concerning potential development at Chelsea Towers, including the possibility of housing at that site.

 

15.  It is found that NCDC is a public agency, within the meaning of §1-200(1), G.S., at least insofar as it acts as the development agent for the City of Norwich with respect to Chelsea Towers.

 

16.  It is found that no specific development plan or partners have been identified for the Chelsea Towers site.

 

17.  It is also found that two of the structures on the site are owned by the Mashantucket Pequot Tribal Nation (the “Tribe”), which has an interest in housing for its employees.

 

18.  It is found that the then-president of NCDC met on four occasions with staff of the Tribe, at which meetings the Tribe’s chief counsel and chief of staff brought documents containing information, and shared information contained in those documents,  pertaining to the Tribe’s investments and expenditures in the structures it owns within the development site, as well as the Tribe’s analysis of housing needs in the City.

 

19.  It is found that the Tribe’s representative specifically requested that the information described in paragraph 18, above, remain confidential.

 

20.  It is found that information described in paragraph 18, above, was used by NCDC in its analysis of the Chelsea Towers project, and additionally is intended to be used by the respondent to discuss the progress and direction of that project.

 

21.  It is concluded that the records described in paragraph 18, above, are public records within the meaning of §1-200(5) G.S.

 

22.  It is found that the information described in paragraph 18, above, is “commercial or financial information  given in confidence, not required by statute,”
 within the meaning of §1-210(5)(B), G.S.

 

23.  It is found that the respondent City Council intended to meet on Monday, April 7, 2003, to discuss with NCDC the progress of the Chelsea Towers project.

 

24.  It is also found that the City Council intended to convene in executive session at that meeting for the limited purpose of discussing the information described in paragraph 18, above.

 

25.  It is found that public discussion of the information described in paragraph 18, above, would result in the disclosure of the information contained in public records exempt from disclosure under §1-210(b)(5), G.S.

 

26.  It is therefore concluded that there is not probable cause to believe that the announced decision of the respondent to meet in executive session was in violation of §§1-200 and 1-225, G.S.

 

27.  The respondent therefore is not temporarily restrained from meeting in executive session for the purpose 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 dismissed.

 

 

 

 

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

June 11, 2003.

 

 

___________________________________

Dolores E. Tarnowski

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:

 

Paul Choiniere and The Day

457 West Main Street

Norwich, CT  06360

 

City Council, City of Norwich

c/o Michael E. Driscoll, Esq.

22 Courthouse Square

P.O. Box 391

Norwich, CT  06360

 

 

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2003-115FD/mes/06/17/2003