FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on January 14, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with docket #FIC 2004-406¸ Karen Emerick v. Ethics Commission, Town of Glastonbury; and docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury.

 

            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 August 23, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by establishing subcommittees that held secret meetings by telephone and email to prepare forms, rules, regulations, a mission statement and similar documents for the respondent.  The complainant alleged that such meetings were not open to the public and were not noticed, and that no minutes or agendas were filed for such meetings.  The complainant requested that all actions taken by the subcommittees be declared null and void, that the subcommittees be directed to conduct their business publicly, and that the members of the subcommittees be required to attend training sessions conducted by the Commission.

 

3.  It is found that the respondent first began meeting on November 24, 2003, following the adoption by the Town of Glastonbury of an ethics ordinance in August of 2003.  

 

4.  It is found that the respondent had no formal staff, although town employees were sometimes available to assist.

 

5.  It is found that the respondent held a regular meeting on December 15, 2003, at which time the chairman of the respondent, without a vote of the respondent but with its implied approval, appointed two members to a “Complaint Form Subcommittee,” two members to an “Acknowledgement Form Subcommittee,” and two members to a “Training Protocol Subcommittee.”  The tasks of those three subcommittees were, respectively, to draft a complaint form, an acknowledgement form, and a training protocol document.  Additionally, the chairman volunteered to draft a rules of procedure document.

 

6.  It is found that, beginning after the respondent’s December 15, 2003 meeting and continuing through at least its July 12, 2004, meeting, members of the respondent, both in the pairs reflected in the subcommittees, and individually, wrote drafts of the documents referred to in paragraph 5 of the findings, above, using similar documents from other jurisdictions as models.

 

7.  It is found that, beginning after December 15, 2003 and continuing through at least July 12, 2004, members of the respondent’s subcommittees met in person  and communicated by telephone and email, to write and discuss the drafts of the documents referred to in paragraph 5 of the findings, above.

 

8.  It is found that such communications and meetings were not conducted in public, although copies of emails were subsequently provided to the complainant, as discussed in docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury.  The subcommittees did not file notices of their meetings or prepare minutes of their meetings.

 

9.  However, because the complaint in this matter was not filed until August 23, 2004, the Commission on its own motion necessarily raises the issue of subject matter jurisdiction over alleged violations of the FOI Act occurring before July 24, 2004 (thirty days before the filing of the complaint in this matter).

 

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

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. 

 

11.  It is found the meetings, in the form of communications between members of the respondent’s subcommittees, were unnoticed within the meaning of §1-206(b)(1), G.S.

 

12.  It is found that the complainant did not have explicit knowledge of the communications between the respondent’s subcommittee members until she received copies of the emails transmitted between the subcommittee members beginning on September 30, 2004, as found in docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury.

 

13.  However, it is also found that members of the subcommittees did not conceal the fact that they had been communicating and working together.  The complainant attended open meetings of the respondent beginning as early as January 12, 2004, and continuing thereafter until at least July 12, 2004, when the subcommittees routinely and openly reported their work to the respondent, and members of the subcommittees indicated that they were working and communicating with each other.

 

14.  It is found that the work being conducted by the subcommittees, and the fact of their communications with each other, is also reflected in the minutes of the respondent’s meetings beginning on January 12, 2004, and continuing thereafter until at least July 12, 2004.  Indeed, the specific issue of whether email communications between members of the respondent concerning the drafting and editing of documents could constitute meetings subject to the FOI Act was explicitly raised by the respondent’s attorney at the respondent’s June 28, 2004 meeting.  

 

15.  It is therefore concluded that the fact that the subcommittees were meeting in some form was openly ascertainable to the complainant, both by her attendance at the respondent’s meetings and by her opportunity to review the minutes of the meetings, so that she could not have failed any later than June 28, 2004 to be apprised of the meetings through the exercise of reasonable observation.

 

16.  It is therefore concluded that the complainant had repeated notice in fact of the unnoticed meetings of the respondent’s subcommittees beginning on January 12, 2004 and continuing through at least June 28, 2004.

 

17.  It is therefore concluded that the Commission lacks subject matter jurisdiction over any allegations of violations of the FOI Act occurring before July 24, 2004, since the complaint was filed on August 23, 2004.

 

18.  While there was extensive evidence of the communications between members of the respondent’s subcommittees between January 12, 2004 and continuing through July 12, 2004, there is insufficient evidence from which to find whether such communications continued over the summer months, specifically between July 24 and August 23, 2004, the thirty days prior to the filing of the complaint.

 

19.  Consequently, based upon the limitation of the Commission’s subject matter jurisdiction, and the lack of evidence concerning the only time period over which the Commission has jurisdiction, it is concluded that the respondent did not violate §1-225(a), G.S.

 

 

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 August 10, 2005.

 

________________________________

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:

 

Karen Emerick

175 Coldbrook Road

South Glastonbury, CT 06073

 

Ethics Commission,

Town of Glastonbury

c/o Henry J. Zaccardi, Esq. and

Rebecca Rudnick, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-386FD/paj/8/16/2005