FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 20, 2003, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, contested case docket #FIC 2003-129, David R. Jacobs, Jr. v. Branford Board of Police Commissioners, Town of Branford was consolidated with the above-captioned case.

           

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), G.S.

 

            2.  By letter of complaint, dated April 21, 2003, and filed on April 23, 2003, the complainant appealed, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

i)                           denying the complainant copies of records, as more fully described in paragraphs 3 through 13, below;

ii)                         failing to respond within four business days to the complainant’s request in paragraph 2i) above;

iii)                        a) failing to list the complainant’s FOI request on the April 14, 2003 regular meeting agenda under “communications” as required by the Branford Board of Police Commission Rules of Order” and  instead listing such request under “other business”, and b) discussing the complainant during an executive session without indicating on the posted agenda that he would be discussed in such executive session.

In his letter of complaint, the complainant requested that the maximum civil penalty be imposed against the respondents.

            3.  With respect to the allegations described in paragraphs 2i, and 2ii, above, it is found that the complainant mailed a request for records to the respondent board during early April 2003, which request the respondents received on or about April 8, 2003 (hereinafter “April request”).

            4.  It is found that the April request was for all records pertaining to the executive session held by the respondents on October 10, 2000.

            5.  It is found that the respondent chairman, on the fifth business day after receiving the request, informed the complainant by letter dated April 15, 2003 that:

“At the regular meeting of the [respondent ] Board last night, consideration was give (sic) to your letter requesting of us the release of information deemed to be in our possession.  The conclusion we reached is that your pursuit should be directed to the Freedom of Information Commission.  We will respond to that Commission’s requests.”

            6.  It is also found that by letter dated June 14, 2003 the respondent chairman provided the complainant with a copy of the minutes of the October 10, 2000 meeting.

            7.  At the hearing in this matter, the respondent chairman indicated that he does not have any records of the executive session held on October 10, 2000.

            8.  The complainant contends that an accusatory statement concerning him that was read by Commissioner Mooney during the October 10, 2000 executive session did exist at the time of such session as well as additional records.

            9.  It is found that the respondent chairman does recall that a statement was read by respondent commissioner Mooney during the October 10, 2000 executive session.  However, the respondent chairman testified that no records that were used during the October 10, 2000 executive session were filed with the minutes of the October 10, 2000 meeting and he never received a copy of the statement and does not have a copy of such statement.  He further testified that he has no records that were used during the executive session.

            10.   It is found that the statement did exist at the time of the October 10, 2000 executive session.

            11.  Section 1-200(5), G.S., defines “public records or files” as: “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.”

            12.  It is found that the statement was a record that was “used” by the respondents during the October 10, 2000 executive session, and it was apparently “prepared” by respondent Commissioner Mooney.

            13.  It is concluded that the statement is a public record within the meaning of §1-200(5), G.S., and the complainant is entitled to a copy of it.  However, it is unclear from the record whether the statement still exists, and if so, who has a copy of it.

            14.  With respect to the allegation described in paragraph 2iii a) above, it is found that the complainant has failed to allege any conduct on the part of the respondents that, even if true, violates the FOI Act.

            15.  With respect to the allegation described in paragraph 2iii b), above, it is found that the respondent held a regular meeting on April 14, 2003.  It is found that the agenda for such meeting is dated April 9, 2003.  It is found that during the April 14, 2003 meeting the respondent convened in executive session and discussed an FOI request made by the complainant.  It is found that neither the minutes nor the agenda of the April 14, 2003 fairly apprised the public of the issue to be addressed in executive session.

            16. Section 1-225(f), G.S., provides that: “[A] public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.”

            17.  This Commission has held, in numerous final decisions, that prior to convening in executive session a public agency needs to fairly apprise the public of the matter to be addressed in such session.

            18.  At the hearing in this matter, the respondent conceded that in the past, prior to going into executive session, it did not identify on its agenda or during the public portion of its meeting the individual whose matter was to be discussed in executive session.  The respondent did indicate however that the subject of the executive session was routinely advised of the executive session, prior to such session being held.

 

            19.  It is concluded that the respondent did not state the reason for the April 14, 2003 executive session, within the meaning of §1-225(f), G.S., and therefore, violated such provision.

 

20.  Based on the record in this case, it is concluded that no civil penalty is warranted.

 

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

            1.  Forthwith, the respondent chairman shall obtain a copy of the statement (described more fully in paragraphs 8 through 13, of the findings, above) from Commissioner Mooney, or the Police Chief, or any other board member who may have a copy of such statement.  If the statement no longer exists, the respondent chairman shall forthwith so indicate in writing to the complainant with an explanation as to what happened to such statement.

            2.  Henceforth, the respondents shall state the reason prior to convening in executive session in such a way so that the public is fairly apprised of the specific purpose of an executive session.

     

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2004.

 

 

___________________________________

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:

 

David R. Jacobs, Jr.

55 Swift Street

Branford, CT  06405

 

Jon Grossman, Chairman, Branford Board

of Police Commissioners, Town of Branford;

Daniel Bullard, Joanne McGuigan, John Mooney,

Bruce Morris, and Neil Velleca, as members,

Branford Board of Police Commissioners, Town of

Branford; and Branford Board of Police

Commissioners, Town of Branford,

c/o Carolyn Vacchiano, Esq.

Wiggin and Dana

One Century Tower

New Haven, CT  06508

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-145/FD/abg/01/16/2004