FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 29, 2004, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  At the hearing in this matter, and without objection, the Hearing Officer added the Town Clerk, Town of Suffield as a party respondent in this 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 dated January 13, 2004, and filed on January 16, 2004, the complainant appealed alleging that the respondent commission violated the Freedom of Information (“FOI”) Act by:

 

a.  conducting a special meeting on December 15, 2003 in executive session to address an ethics complaint, failing to publicize the agenda for such meeting, changing the meeting dates, only issuing notice of such meeting at town hall, and by not making any public reference to the ethics complaint, the participants, the deliberations or the outcome;

 

b.  failing to indicate in the minutes of the December 15, 2003 meeting the purpose of the executive session, failing to identify those persons who attended the executive session, and failing to state the reason for such session; and

 

c.  holding a special meeting on December 17, 2003, without publishing an agenda or a meeting notice,

going into executive session on December 17, 2003 without stating a reason, and failing to indicate in the minutes those persons in attendance at such executive session.[1]

 

3.  Also, by letter dated January 14, 2004, and filed on January 16, 2004, the complainant appealed alleging that the chairman of the respondent commission and the respondent town clerk violated the FOI Act by failing to provide him with a copy of certain records he requested.  Specifically, the complainant alleged in his January 14, 2004 letter that:

 

a.  the chairman of the respondent commission failed to provide him with a copy of the Rules of Procedure used by the respondent commission; and

 

b.  the respondent town clerk failed to provide him with a copy of the voter tally sheets from the November 4, 2003 election.[2]

 

4.  With respect to the allegations described in paragraph 2, above, it is found that the respondent held a special meeting on December 15, 2003, which meeting was continued to December 17, 2003.  It is found that notice of the December 15, 2003 meeting was posted at town hall, however, no notice was posted that the December 15, 2003 meeting was continued to December 17, 2003.  It is also found that no notice setting forth the business to be conducted at the December 15 and 17, 2003 meetings was made available to the public.

 

5.  It is also found that the entire December 15 and 17, 2003 meetings were conducted in executive session (hereinafter “executive sessions”).  It is also found that no purpose for the executive sessions was stated prior to the respondent commission entering such sessions on December 15 and 17, 2003.

 

6.  It is also found that the respondent commission did not identify in the minutes all persons in attendance at the December 15 and 17, 2003 executive sessions.  It is further found that the minutes do not fairly and adequately apprise the public of the business conducted at the December 15 and 17, 2003 meetings.

 

7.  Section 1-200(6), G.S., provides that:

 

(6)  “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (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.

 

8.  Section 1-210(a), G.S., in relevant part, provides:

 

Each such [public] agency shall make, keep and maintain a record of the proceedings of its meetings.

 

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.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.

 

10.  Section 1-225(d), G.S., provides, in relevant part:

 

Notice of each special meeting of every public agency … shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the … office of the clerk of such subdivision for any public agency of a political subdivision of the state ….  The … clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting….  The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency…. [Emphasis added.]

 

11.  Section 1-225(f), G.S., provides:

 

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. [Emphasis added.]

 

 

 12.  Section 1-231(a), G.S., provides:

 

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency. [Emphasis added.]

 

 

13.  It is found that the respondent failed to prove that it convened in executive session on December 15 and 17, 2003, for a purpose permitted within the meaning of §1-200(6), G.S., and therefore violated such provision.

 

14.  It is concluded that the respondent violated §§1-210(a) and 1-225(a), G.S., when it failed to prepare and have available for public inspection minutes that fairly and adequately apprise the public of the nature of the business conducted at the December 15 and 17, 2003 meetings.  This Commission has repeatedly stated in numerous decisions that at a minimum, minutes must fairly and adequately apprise the public of the matters addressed at a meeting.

 

15.  It is also concluded that the respondent violated §1-225(d), G.S., by failing to post notice of the December 15 and 17, 2003 special meetings that “specify … the business to be transacted”.

 

16.  It is also concluded that the respondent violated §1-225(f), G.S., when it failed to state the reasons for the executive sessions.

 

17.  It is also concluded that the respondent violated §1-231(a), G.S., when it failed to disclose in the minutes of the December 15 and 17, 2003 meetings, all persons who attended the executive sessions.   

 

18.  It is further concluded that by changing the meeting dates of the meetings ultimately held on December 15 and 17, 2003, the respondent did not violate any provision of the FOI Act.

 

19.  With respect to the allegation described in paragraph 3a, above, it is found that on December 16, 2003 and January 8, 2004, the complainant requested that the chairman of the respondent commission provide him with a copy of the Rules of Procedure used by the respondent commission.  It is found that the chairman of the respondent commission provided the complainant with a copy of the requested Rules of Procedure on February 17, 2004.

 

20.  With respect to the allegation described in paragraph 3b, above, it is found that on November 14, 2003 and again on January 3, 2004, the complainant requested that the respondent town clerk provide him with a copy of the voter tally sheets.  It is found that the respondent town clerk provided the complainant with a copy of the voter tally sheets on or about March 15, 2004. 

 

21.  Section 1-210(a), G.S., provides, in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to … (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

22.  Section 1-212(a), G.S., in relevant part, further provides:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  [Emphasis added].

 

23.  It is concluded that the Rules of Procedure and voter tally sheets are public records within the meaning of §1-210(a), G.S.

 

24.  It is further concluded that the respondents’ provision of access to the Rules of Procedure and voter tally sheets was not prompt, and therefore, the respondents violated §1-210(a), G.S.

 

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

1.  Henceforth, the respondents shall strictly comply with the executive session, open meetings and access to records provisions of the FOI Act.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 10, 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:

 

Tom Frenaye

PO Box J

Suffield, CT 06093

 

Ethics Commission,

Town of Suffield; and

Town Clerk, Town of Suffield

c/o Edward G. McAnaney, Esq.

Suffield Village

Suffield, CT 06078

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-031FD/paj/11/12/2004