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 2004-406, 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 27, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying prompt access to public records, by conducting an executive session at its September 13, 2004 meeting for an improper purpose, and by denying the public the right to attend that executive session.  The complainant requested that all actions taken by the respondent at the September 13, 2004 meeting be declared null and void, that the respondent be required to amend its minutes to reflect the actions that transpired during the executive session, that all recorded data from the executive session be made public, that the respondent provide the public with prompt access to public records, that executive sessions take place only for reasons outlined in the General Statutes, that the Town of Glastonbury replace the retired FOI Act liaison, and that the members of the respondent be required to attend training sessions conducted by the Commission.

 

3.      It is found that the complainant made a request dated September 3, 2004 to each member of the respondent at their home addresses for:

 

a.       “All public records, files, documents, reports, memorandum, notes, drafts, telephone records and

e-mail records regarding any and all business pertaining to the Glastonbury Ethics Commission from the date of the Commission’s inception to September 3, 2004”

 

b.      “All phone records and e-mail records between yourself and any member of the Glastonbury Ethics Commission regarding any and all business pertaining to the Glastonbury Ethics Commission from the date of the Commission’s inception to September 3, 2004.”

 

4.  It is found that the respondent acknowledged the complainant’s request by letter dated September 10, 2004.

 

5.  It is found that the respondent made some records responsive to the complainant’s request available on September 30, 2004, and indicated that it was having its attorney review e-mails, memoranda, notes and drafts to determine what materials were disclosable.

 

6.  It is found that the respondent made records of e-mails, memoranda, notes and drafts available to the complainant on October 15, 2004.

 

7.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

8.  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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.  … Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. 

 

9.  It is concluded that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

10.  The complainant maintains that the provision of records to her was not prompt, was incomplete, and that records were not accessible to the public because they had been removed from the Town Clerk’s office.

 

11.  Given the respondent’s lack of staff, the broad scope of the request, and the complainant’s lack of an expressed immediate need for the requested records, it is found that the records were provided promptly within the meaning of §1-210(a), G.S.

 

12.  It is concluded that the respondent did not violate the promptness requirement contained in §1-210(a), G.S.

 

13.  It is found that copies of records that were ultimately provided to the complainant were temporarily removed from the Town Clerk’s office, where they had been left for the complainant, but were returned when it was discovered that the complainant wished to obtain them.

 

14.  It is concluded that, regardless of whether copies intended for the complainant were temporarily not accessible, that there is no evidence that the public records from which the copies were made were not maintained in an accessible place.

 

15.  It is concluded that the respondent did not violate the requirement contained in §1-210(a), G.S., that its public records be maintained in an accessible place.

 

16.  It is found that the respondent made, and circulated by email, many drafts of various documents that it and its subcommittees had drafted.  In this regard, the Commission takes administrative notice of its record and decisions in docket #FIC 2004-386¸ Karen Emerick v. Ethics Commission, Town of Glastonbury; and docket #FIC 2004-406, Karen Emerick v. Ethics Commission, Town of Glastonbury, which were consolidated for the purposes of hearing with this complaint.  Specifically, it is found that the respondent circulated drafts of a complaint form, an acknowledgement form, a training protocol, and a rules of procedure document. 

 

 

17.  It is found that the few, if any, drafts of documents were provided to the complainant.

 

18.  Section 1-210(b)(1), G.S., provides:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

(1)  Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure ….

 

19.  The respondent does not claim that any drafts are exempt from disclosure pursuant to §1-210(b)(1), G.S., and no evidence was presented that the respondent determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

 

20.  It is found that members of the respondent exchanged multiple drafts of documents, that at least one member was referred to in a September 13, 2004 meeting of the respondent as being “the keeper of the Procedures and he has several hundred pages of drafts,” and that, although members may not have retained paper copies of drafts, no evidence was presented that members of the respondent had erased or overwritten electronic copies of draft documents. 

 

21.  It is therefore found that the respondent, through its members, retains many drafts of documents, at least in electronic form, that have not been provided to the complainant.

 

22.  It is concluded that the respondent violated §1-210(a), G.S., when it did not provide copies of drafts of documents to the complainant.

 

23.  With respect to the complainant’s allegation that the respondent convened an executive session for an improper purpose, it is found that the complainant filed an August 23, 2004 complaint with the respondent alleging a violation of the Glastonbury Code of Ethics.

 

24.  It is found that the respondent by letter dated August 25, 2004 informed the complainant that it would not be accepting “Complaints” directly from the public, but rather would receive “Inquiries,” which might or might not eventually lead to a “Complaint.”  The respondent further indicated that it would take up her August 23, 2004 letter as “Other Communications.”

 

25.  It is found that the respondent met on September 13, 2004, and convened in executive session to review the August 23, 2004 correspondence from the complainant.   The respondent’s stated purpose for the executive session was “to consider written citizen communication containing potentially confidential information.”

 

26.  It is found that, by letter dated September 15, 2004, the respondent informed the complainant that it regarded her August 23, 2004 letter as an “Inquiry,” that it was not yet prepared to accept an “Inquiry”  because its procedures were still in the process of being refined and approved by legal counsel, and that the respondent looked forward to entertaining the complainant’s “request” when presented in the proper form.  Subsequently, on November 8, 2004, the respondent forwarded to the complainant a packet of materials to consult should she wish to submit an inquiry to the respondent.

 

27.  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.”

 

28.  The respondent does not contend that its executive session was permitted by §§1-225(a) and 1-200(6), G.S., but rather by §§1-82a and 7-148h, G.S.

 

29.  Section 1-82a, G.S., provides in relevant part

 

(a) Unless the [state ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent….

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.

(c) Not later than three business days after the termination of the investigation, the commission shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The commission shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.

(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its finding and a summary of its reasons therefor.  [Emphasis added.]

30.  Section 7-148h, G.S., provides in relevant part:

(a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause…. 

 

31.  It is found that §§1-82a and 7-148h, G.S., apply by their express terms only to complaints alleging ethics violations, and proceedings conducted prior to a finding of probable cause.  In this case, it was the respondent’s own decision to treat the complainant’s August 23, 2004 letter not as an ethics complaint, but as “other correspondence.”  Moreover, regardless of what the respondent called the complainant’s August 23, 2004 correspondence, it did not treat it as an ethics complaint, did not discuss the merits of the correspondence, and did not take any actions that might lead to a finding of probable cause.

 

32.  The respondent maintains that it didn’t know what to do with the complainant’s August 23, 2004 correspondence, wasn’t ready to receive it, and convened in executive session to avoid embarrassing a public employee or having allegations aired in public that were ultimately determined to have no substance.

 

33.  However, it is concluded that the respondent has not stated a permissible purpose for an executive session, and that its closed session did not fall within the provisions of §§1-82a and 7-148h, G.S.  Moreover, the Commission notes that the respondent, as an alternative to discussing the complainant’s August 23, 2004 correspondence in either public session or executive session, could simply have elected not to discuss it at all.

 

34.  It is concluded that the respondent violated §1-225(a), G.S., by convening in executive session for an improper purpose.

 

35.  With respect to the portion of the complaint that alleges that the complainant was denied access to a public meeting, it is found that the respondent denied the public the right to attend the September 13, 2004 improper executive session.

 

36.  In her complaint, the complainant requested that all actions taken by the respondent at the September 13, 2004 meeting be declared null and void, that the respondent be ordered to amend its minutes to reflect the actions that transpired during the executive session, that all recorded data from the executive session be made public, that the respondent provide the public with prompt access to public records, that executive sessions take place only for reasons outlined in the General Statutes, that the Town of Glastonbury replace the retired FOI Act liaison, and that the members of the respondent be required to attend training sessions conducted by the Commission.

 

37.  It is found that there were no actions taken by the respondent at its September 13, 2004 meeting to be declared null and void.

 

38.  However, it is also found that the respondent’s minutes of its September 13, 2004 meeting do not reflect what occurred in the improper executive session. 

 

39.  More significantly, it is found that the public has been entirely denied the right to know what transpired in the improper executive session.

 

40.  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. 

 

41.  The Commission believes that the relief appropriate to rectify the denial of the public’s right to attend the September 13, 2004 meeting in its entirety is for the respondent to report in its minutes what transpired at the improper executive session in sufficient detail to apprise the public as to what transpired, to the same degree as would have resulted from the public attending the session.

 

42.  It is found that the respondent has recently attended a training session conducted in part by staff of the Commission, and that ordering further training would not be an appropriate remedy.

 

 

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

 

            1.  The respondent shall forthwith provide the complainant with copies of any draft documents referenced in paragraph 16 of the findings, above, maintained by the respondent or its members.

 

2.  Henceforth the respondent shall strictly comply with the open meetings requirements contained in §1-225(a), G.S.

 

            3.  The respondent shall, within 90 days of  the notice of final decision in this matter, cause minutes to be filed of the September 13, 2004 executive session.  In preparing such minutes, the respondent shall ensure that the minutes disclose what transpired in executive session to the same degree as would have been revealed by conducting the session in public. 

 

 

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/2004-447FD/paj/8/16/2005