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 2004-386¸ 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 September 7, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by conducting secret special meetings by telephone and email to discuss matters before it, and to prepare forms, rules, regulations, a mission statement and similar documents.  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 respondent at such meetings be declared null and void, that the respondent be directed to conduct its business publicly, and that the members of the respondent 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 a quorum of the respondent communicated by email beginning on December 12, 2003, and continuing through at least July 12, 2004, to raise, discuss and “brainstorm” substantive matters coming before the respondent, such as guidelines for determining conflicts of interest, what, in general, constitutes unethical behavior, how to respond to requests for advisory opinions, comments on drafts of documents, and whether in fact their email conversations might constitute meetings subject to the FOI Act.   

 

5.  It is found that such communications and meetings were not open to the public, although emails of these discussions were subsequently provided to the complainant, as discussed in docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury.  The respondent did not file notices of its email meetings or prepare minutes of those meetings.

 

6.  It is found that some of the communication between members of the respondent was confined to exchanges of drafts and comments; comments on matters of form such as word choices, combining paragraphs or correcting spelling or grammar in draft documents; dropping certain formal requirements, such as the requirement that a complaint be sworn before a notary; and reminders concerning deadlines.  Some of these communications were comparable to work that would be conducted by staff members, if the respondent had staff.  Nonetheless, this work was actually performed by the respondent itself.

 

7.  It is found that much of the communication among a quorum of the respondent was significantly more substantive, such as: discussion concerning guidelines for determining conflicts of interest; discussion concerning what, in general, constitutes unethical behavior; discussion concerning how to respond to requests for advisory opinions; and discussion concerning whether the respondent’s  email conversations on the above topics constituted meetings subject to the FOI Act. 

 

8.  It is found that all of the documents discussed and drafted by the members of the respondent, and all of the substantive concerns raised in their communications, were ultimately discussed openly by the respondent at its regular meetings.

 

9.  Section 1-200(2), G.S., provides in relevant part:

 

“Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.   “Meeting” does not include:   … communication limited to notice of meetings of any public agency or the agendas thereof. 

 

10.  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.

 

11.  It is found that while sometimes the communications among a quorum of the respondent were limited to the agendas of the respondent’s meetings, as permitted by §1-200(2), G.S., and reminders about deadlines, most often they concerned substantive matters over which the respondent had supervision, control, jurisdiction or advisory power, within the meaning of §1-200(2), G.S., as found in paragraphs 6 and 7 of the findings, above.

 

12.  It is also found that the respondent’s motive was to educate itself on ethics matters, and that a quorum of the respondent corresponded by email in order to brainstorm, to exchange ideas more efficiently, and to be prepared to discuss matters more fully and competently at its public meetings.

 

13.  Notwithstanding the respondent’s good intentions, it is concluded that the email communications among a quorum of the respondent beginning on December 12, 2003, and continuing through at least July 12, 2004 were “meetings” within the meaning of §1-200(2), G.S.

 

14.  However, because the complaint in this matter was not filed until September 7, 2004, the Commission on its own motion necessarily raises the issue of subject matter jurisdiction over alleged violations of the FOI Act occurring before August 8, 2004.

 

15.  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. 

 

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

 

17.  It is found that the complainant had notice in fact that the respondent was conducting unnoticed meetings when, on August 27, 2004, she visited the Glastonbury Town Clerk’s office, viewed all notices, agendas and minutes on file for the respondent, and discovered none except for its public meetings.  Her knowledge of the unnoticed meetings was confirmed when she received copies of emails transmitted between the members, beginning on September 30, 2004, as found in docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury.

 

18.  In docket #FIC 2004-386, Karen Emerick v. Ethics Commission, Town of Glastonbury, the Commission concluded that the complainant in that case had repeated and extensive notice in fact of unnoticed meetings of the respondent’s subcommittees concerning the drafting and editing of documents beginning on January 12, 2004 and continuing through at least June 28, 2004. 

 

19.  However, it is found that the complainant did not have notice in fact of the email communications among a quorum of the respondent as a whole concerning matters other than the drafting and editing of documents by the subcommittees until August 27, 2004 at the earliest.  While the work and conversations of the subcommittees concerning documents was discussed at the respondent’s meetings and reflected in its minutes, the fact of the conversations among the respondent as a whole concerning broader issues, and the comments by members of the respondent on subcommittee drafts, were not discussed at the respondent’s meetings or reflected in its minutes.  Although many of the matters discussed in emails were subsequently also discussed in open meetings, this fact did not put the complainant on notice that unnoticed email discussions had occurred before the respondent’s public meetings.

 

20.  It is therefore concluded that the complaint was filed within 30 days of the notice she had on August 27, 2004, that unnoticed meetings of the respondent may have occurred between December 12, 2003 and August 27, 2004.

 

21.  Consequently, it is concluded that the respondent violated §1-225(a), G.S., when a quorum met through email conversations that were not noticed or open to the public, from December 12, 2003 through at least July 12, 2004, to discuss matters over which it had supervision, control, jurisdiction or advisory power.  While it is possible the respondent continued to meet through email conversations after July 12, 2004 through August 27, 2004, there is insufficient evidence in the record from which to make such a finding.

 

22.  In her complaint, the complainant requested that the respondent be directed to produce minutes of its email meetings, attend training sessions, and that the actions taken by the respondent at its email meetings be declared null and void.

 

23.  With respect to remedies, §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

 

24.  Given that the respondent filed no minutes of its email meetings, it is found that it is appropriate for the respondent to file minutes of those meetings.  Since the meetings are recorded in the emails between the members of the respondent, the assembly of such minutes should not be onerous.  Even if such reconstruction may be difficult,  the Commission believes that the filing of such minutes is a remedy that is appropriate to partially rectify, if belatedly, the denial of the right of the public to attend the respondent’s meetings, within the meaning of §1-206(b)(2), G.S.

 

25.  It is found that the respondent has already recently attended a training session conducted jointly by staff of the Commission and the respondent’s counsel, that the respondent’s counsel is knowledgeable about the issue of electronic meetings, and that ordering further training would not be an appropriate remedy.

 

26.  With respect to the request for a null and void order, it is found that the complainant was denied the right to attend meetings of the respondent, within the meaning of §1-206(b)(2), G.S.

 

27.  The decision whether to declare any action null and void is permissive, not mandatory, and rests within the sound discretion of the Commission.  In making such a determination, the Commission considers the facts and circumstances surrounding the violation of the FOI Act.

 

28.  It is found that the complainant personally attended, and often recorded, most of the respondent’s public meetings, at which the work of the respondent, including the issues raised in its emails, was openly discussed.

 

29.  It is also found that the respondent took no actions by email, that its email meetings were confined to circulation of documents and discussion, and that consequently there is no action for the Commission to declare null and void.

 

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 open meetings requirements contained in §1-225(a), G.S.

 

            2.  The respondent shall, within 90 days of the issuance of the final decision in this matter, cause minutes to be filed of the meetings of the respondent that were conducted by email.

 

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/2004-406FD/paj/8/16/2005