FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 28, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for hearing with Docket #FIC 2004-107, Scott Coleman v. Economic Development Commission, Town of Rocky Hill, and Docket #FIC 2004-114, Barbara Surwilo v. Economic Development Commission, Town of Rocky Hill.

 

            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 filed March 1, 2004, the complainant appealed to the Commission, alleging, among other matters no longer at issue, that the respondent violated the Freedom of Information (“FOI”) Act at its February 4, 2004 meeting by convening in executive session without a statutory reason. 

 

3.  It is found that the town of Rocky Hill sought proposals to develop land contained in an industrial park, called “Rock Hill Business Park Phase II.”  The town’s request for proposals contained a substantial number of records concerning the land, including a recent appraisal, all of which were made public.

 

4.  It is found that complainant was the only person to submit a proposal, and that his proposal was to develop the land as senior housing.

 

5.  It is found that everything contained in the complainant’s proposal, including the price of the land he would acquire, was made public on September 24, 2003. 

 

6.  It is found that, following town elections and a change of administrations, the complainant presented his proposal publicly at a meeting of the town council on January 20, 2004.  The town council decided to act on the proposal at its February 17, 2004 meeting.

 

7.  It is found that the mayor, by letter dated January 26, 2004, requested that the respondent review the proposal and provide the town council with an analysis and recommendation before the town council acted.  Specifically, the mayor requested that the respondent consider the neighboring community, the long term growth of the town, and how the proposed project aligned with the town plan of conservation and development.  The mayor asked the respondent to offer the town council the respondent’s guidance on the best use of the property.

 

8.  It is found that the respondent met on February 4, 2004, at which time the chairman of the respondent submitted the mayor’s January 26, 2004 letter asking the respondent to review the proposal and provide the town council with the respondent’s analysis and recommendations. 

 

9.  It is found that review of the complainant’s proposal was taken up in executive session, without the respondent stating a purpose for the executive session.  Following the executive session, the respondent voted to forward an evaluation of the proposal to the town council, recommending two unspecified options.

 

10.  It is found that, in the executive session, the respondent did not discuss the possibility of its acquiring real estate, either by purchase or lease.

 

11.  It is found that, while in executive session, the respondent conducted a wide-ranging  discussion of the complainant’s proposal, including the cost of development to the town in terms of tax revenues, other uses to which the land might be put, the effect on abutting properties, and wetlands and railroad issues. 

 

12.  It is found that the respondent in executive session discussed the potential use and value of the land that the complainant proposed to purchase, but did not discuss matters that would cause a likelihood of increased price, and certainly discussed nothing that would cause a likelihood of increased price to the respondent.  The complainant’s proposal offered a fixed price, and, in any event, any increase in the price paid by the complainant could only have benefited the town of Rocky Hill.

 

13.  It is found that all of the records that were discussed in executive session concerning the proposal had previously been made public, and that the respondent discussed no records in executive session that were exempt from disclosure, or any matters that would have resulted in the disclosure of information contained in exempt records. 

 

14.  It is found that the respondent subsequently produced a report called “Analysis of RFP Proposal 2003-015 Beach Investments LLC, Proposal for Rock Hill Business Park Phase II” (the “report”), which report essentially was critical of the proposal as not responsive to the long-term growth of the town, and not in alignment with the town’s plan of conservation and development.  The report recommended that the proposal be rejected, and that the town either seek office or industrial uses for the property, or seek competitive residential uses.

 

15.  It is found that the town council met on February 17, 2004, at which time it requested an opinion of counsel as to whether it could proceed with the respondent’s report.  Members of the town council expressed reservations about considering the report, in light of the fact that it was produced as the result of an executive session that some members of the town council believed might be improper.

 

16.  It is found that, by letter dated March 1, 2004, counsel for the town council submitted an opinion that the respondent’s February 4, 2004 executive session had been authorized pursuant to §§1-200(6)(D) and (E), G.S.

 

17.  It is found that the town council met on March 15, 2004 to receive the respondent’s report, but that presentation of the report was tabled, and that the town council instead voted to reject the proposal without prejudice, because of alleged irregularities in the timing of, and procedures by which, the proposal was originally submitted and opened.

 

18.  The complainant maintains that the respondent violated §§1-225(a) and 1-200(6), G.S., by convening in executive session without a permissible reason.

 

19.  The respondent maintains that the executive session was permitted by §§1-225(a) and 1-200(6)(D) and (E), G.S.

 

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

 

21.  Section 1-200(6)(D) and (E), G.S., provide:

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  … (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  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.

 

22.  In Docket #FIC 2002-130, Waterbury Republican-American et al. v. Naugatuck, the Commission concluded, under circumstances similar to this case, where a municipality’s intentions for a site have been well publicized, and the municipality’s plan is for the development of land owned by the municipality, that mere speculation about the possibility of increased costs resulting from publicity is not sufficient to satisfy the agency’s burden of proof under §1-200(6)(D), G.S., to show a likelihood of increased price.

 

23.  It is found that the respondent failed to prove the likelihood of any increase in price to any party to the complainant’s proposal.

 

24.  The complainant also maintains that the purpose of §1-200(6)(D), G.S., is to protect against land speculation to the detriment of the public agency, and that such land speculation occurs when the public agency is acquiring land, not selling it.

 

25.  The Commission agrees.  In Docket #FIC 1996-133, Hancock v. Windsor Locks Board of Selectmen et al, the Commission concluded that §1-18a(e)(4), G.S. [now §1-200(6)(D), G.S.] “relates only to the acquisition of real estate by an applicable public agency rather than the acquisition of real estate by an entity other than a public agency.” 

 

26.  It is concluded that the respondent failed to prove that its February 4, 2004 executive session was permitted by §1-200(6)(D), G.S.  

 

27.  The respondent maintains that the executive session was nonetheless permitted by §§1-200(6)(E) and 1-210(b)(7), G.S., which, it argues, permit discussion in executive session of the contents of real estate appraisals and engineering or feasibility evaluations made for or by a public agency relative to the acquisition of property.

 

28.  Section 1-200(6)(E), G.S., cited in paragraph 21, above, permits discussion in executive session of matters that would result in the disclosure of records that are exempt from disclosure  pursuant to §1-210(b), G.S.  In turn, §1-210(b)(7), G.S., provides that disclosure is not required of

 

[t]he contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision …

 

29.  It is found  that the respondent failed to prove that any of the records discussed in executive session comprised “engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts.”  The respondent was not acquiring any property, no public supply or construction contracts were involved, and no engineering or feasibility estimates were made for or by the respondent. 

 

30.  It is found that the respondent, at least peripherally, discussed an earlier appraisal of the property to be developed.

 

31.  It is found, however, that all the records discussed in the respondent’s February 4, 2004 executive session, including the appraisal, had been disclosed to the public, either by the town’s request for proposals, by the complainant’s proposal itself, or otherwise.  The respondent offered no evidence to prove that the information contained in any appraisal it discussed in executive session was not known to the public.

 

32.  It is concluded that the respondent’s discussion in executive session could not have resulted in the disclosure of exempt records or information contained in exempt records, because the information contained in the records had already been made public.

 

33.  It is concluded that the respondent failed to prove that its February 4, 2004 executive session was permitted by §1-200(6)(E), G.S.

 

34.  Section 1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend ….

 

35.  It is found that, by conducting its discussion in executive session, the respondent denied the right of interested persons to attend that portion of the February 4, 2004 meeting.

 

36.  It is found that, although the respondent’s report in opposition to the complainant’s proposal was made public, and his proposal was ultimately rejected by the Rocky Hill town council on procedural grounds, it is nonetheless appropriate to declare the actions taken by the respondent in executive session on February 4, 2004 null and void.  Imposing a null and void order will help prevent a reoccurrence of a violation of the executive session provision by the respondent.  Failing to take such action would give the appearance of sanctioning or excusing the improper executive session. 

 

 

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

 

            1.  Henceforth the respondent shall strictly comply with the requirements of §§1-225 and 1-200(6)(D) and (E), G.S.

 

            2.  The actions taken by the respondent at its February 4, 2004 executive session are declared null and void.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2004.

 

________________________________

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:

 

Richard W. Vicino

2360 Main Street

PO Box 876

Rocky Hill, CT 06067

 

Economic Development Commission,

Town of Rocky Hill

c/o Morris R. Borea, Esq. and

John Bradley, Esq.

Rome McGuigan Sabanosh, P.C.

One State Street

Hartford, CT 06103-3101

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-106FD/paj/11/1/2004