FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

           Pursuant to §1-206(b)(1), G.S., a preliminary hearing was convened in the above-captioned matter on April 29, 2004, 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 preliminary hearing was conducted as a contested case, at which time the complainant and the respondent appeared, stipulated to certain facts and presented exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with the Matter of Petition for Declaratory Ruling #96, Office of the Governor of Connecticut, Petitioner, filed April 26, 2004.  As a result of that hearing, the hearing officer determined that there was no probable cause to believe that the intended “depositions” in question would be in violation §§1-200 and 1-225, G.S.  Consequently, this matter was set down for final adjudication at the Commission’s May 12, 2004 meeting.  At that meeting, the Commission rejected the hearing officer’s report and issued this document as its final decision.

              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.  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.  

3.  By letter of complaint dated and filed with the Commission on April 26, 2004, the complainant appealed to the Commission, alleging that the respondent would violate the Freedom of Information (hereinafter “FOI”) Act by holding a deposition hearing in private on May 11, 2004, as part of its inquiry into whether sufficient grounds exist for the House of Representatives to impeach Governor John G. Rowland, and excluding the public from such deposition hearings, thereby violating the open meetings provisions of the FOI Act as set forth in §1-225(a), G.S.

4.  It is found that, at the time of the preliminary hearing, the respondent had scheduled depositions to be taken on April 29, 2004 and on May 11, 2004.   

5. The respondent contends that House Bill 5545 (February 2004 session), now codified as P.A. 04-37, §2(a), which provides as follows, permits it to hold depositions in private:

Sec. 2. (NEW) (Effective from passage) (a) Notwithstanding any provision of the general statutes, during any inquiry, investigation, impeachment or other proceeding conducted pursuant to Article Ninth of the Connecticut Constitution that is commenced on or after January 1, 2004, by the House of Representatives, all information, records of interviews, reports, statements, depositions, notes, memoranda or other data in the custody of or obtained or prepared by the House of Representatives, any committee established by the House of Representatives in furtherance of the purposes of said Article Ninth, the staff of the House of Representatives or the staff of any such committee shall not be subject to the provisions of section 1-210 of the general statutes, as amended, until such committee transmits its final report to the House of Representatives, provided the committee shall have discretion to disclose any such information prior to the transmittal of the final report.  Information provided to the committee by a public agency that is otherwise disclosable by the public agency pursuant to the provisions of section 1-210 of the general statutes, as amended, shall at all times be disclosable by the originating public agency. Nothing in this section shall be construed to mean that any individual waives any privilege provided by law when providing a document or any other information to any such committee.

            6.  It is found that P.A. 04-37 became effective on April 21, 2004.

 

7.  The complainant contends that P.A. 04-37 addresses “records” of depositions and not the deposition proceedings, and therefore P.A. 04-37 precludes disclosure of the record or transcript of a deposition but not the proceedings themselves.  In support of this argument, the complainant refers to the portion of P.A. 04-37, §2(a) which limits its supersedence of the FOI Act to §1-210, G.S., only.  Section 1-210, G.S., is the principal open records provision of the FOI Act.

 

8.  It is found that P.A. 04-37, §2(a) is clear and unambiguous and on its face exempts from disclosure only records by virtue of its reference to §1-210, G.S.

 

9.  It is therefore concluded that P.A. 04-37, §2(a) does not preclude public access to the deposition proceedings at issue, and accordingly the respondent would violate the FOI Act by holding such depositions in private.

 

10.  The respondent also contends that it is permitted to hold the “depositions” in question in executive session pursuant to §§1-225(a) and 1-200(6)(E), G.S., which permits executive sessions to discuss records exempt from disclosure.

 

11.  It is found that conducting a “deposition” does not constitute discussing the contents of records exempt from disclosure under §1-200(6)(E), G.S.

 

12.  Consequently, it is concluded that holding such “depositions” in executive session is not permitted under §§1-225(a) and 1-200(6)(E), G.S.

 

13.  Finally, the respondent contends that the “depositions” in question do not constitute meetings within the meaning of §1-200(2), G.S., because under the respondent’s rules, at such “depositions” a quorum of the respondent will not be present and it will not discuss or act upon a matter within its supervision, control, jurisdiction or advisory power.

 

14.  It is found however, that by virtue of Section C. of the respondent’s deposition procedures, such “depositions” constitute proceedings of a public agency to act upon a matter within its supervision, control, jurisdiction and advisory power, within the meaning of §1-200(2), G.S.

 

15.  It is therefore concluded that the “depositions” in question constitute meetings of a public agency subject to the open meetings provisions of the FOI Act.

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

1.  The respondent shall henceforth conduct its “depositions” in conformity with the FOI Act.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 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:

 

Office of the Governor of Connecticut

c/o Ross Garber, Esq.

State Capitol

Room 212

Hartford, CT  06106 

 

State of Connecticut, House of

Representatives, Select Committee

of Inquiry

c/o Assistant Attorney General Susan Quinn Cobb

55 Elm Street

Hartford, CT  06141

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2004-025/FD/mes/05/14/2004