FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on October 11, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. Pursuant to Regulations of Connecticut State Agencies §1-21j-38, late filed exhibits were admitted into evidence after the close of the hearing, without objection. 

 

            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)(A), G.S.

 

2.  By letter dated July 18, 2005 and filed with the Freedom of Information Commission (“Commission”) on July 20, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act by: a) holding an executive session on May 3, 2005 without a lawful purpose; b) holding an executive session on June 1, 2005, without filing minutes that recite the required vote to enter executive session; c) holding a telephone “poll” of the members of the respondent  in order to decide to cancel the regular July 6, 2005 meeting of the respondent, without filing any minutes of this telephone meeting; d) holding an “executive session meeting” on July 13, 2005, without notice to the complainant, a lawful purpose for the executive session, the required vote to enter executive session, or the timely filing of minutes, including disclosure of all persons in attendance; and finally, e) adding an item to the agenda of another special meeting held on July 13, 2005, which item was not included in the notice for the special meeting.

 

3.  It is found that notices were properly filed for both the respondent’s special meeting held on May 3, 2005 and its regular meeting on June 1, 2005, with the notices being filed for the special meeting on April 26, 2005 and for the regular meeting on November 4, 2004. It is also found that the complaint to the Commission was postmarked July 19, 2005.

 

4.  Section 1-206(b)(1), G.S., states in relevant part:

 

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.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. (emphasis added)

 

5.  It is concluded with reference to the allegations of the complaint summarized at paragraph 2a) and 2b), above, that because neither the special meeting on May 3, 2005 nor the regular meeting on June 1, 2005 was “an unnoticed or secret meeting”, as that term is used in §1-206(b)(1), G.S., and because the denials of FOIA rights alleged in connection with these meetings occurred more than thirty days before July 19, 2005, when the complaint is deemed to have been filed, the Commission does not have jurisdiction concerning these allegations of the complaint.

 

6.  It is found, with reference to the allegations at paragraph 2c, above, concerning the cancellation of the regular July 6, 2005 meeting, that two members of the respondent telephoned the office of the first selectman to indicate that they would be unable to attend. On June 28, 2005, the receptionist for the first selectman telephoned members to inform them that the July 6^th meeting had been cancelled, and that in its place, a special meeting would be held on July 13, 2005.

 

7.  It is found that “a couple of years ago” the complainant filed a request that he be given notice by mail of the meetings of the respondent. It is also found that the respondent continued to give the complainant notice of its regular and some special meetings, but not of other special meetings, which were called exclusively to conduct executive sessions. It is found that no such notice was given to the complainant concerning the special meeting of July 13, 2005, which was called exclusively to conduct an executive session.      

 

8.  It is found that the respondent filed a notice on July 8, 2005 for a special meeting to be held at 4:30 p.m. on July 13, 2005. Both the notice and the minutes of the meeting state the reasons for such executive session included “Land Negotiations”. There was argument by counsel at the hearing that the discussion in executive session concerned “the selection of a site” and “the lease, sale, or purchase of real estate” by the town. However, no member of the respondent, or attorney O’Connell who attended the executive session, appeared to present evidence, and there was no testimony that publicity would cause a likelihood of increased price to the town for real estate. It is also found that, at such meeting, the respondent held an executive session, without first having “an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting….” It is also found that the minutes for this meeting were filed on July 13, 2005, and appear to disclose all persons in attendance.  

 

9. It is found that, at a second, separate special meeting convened at 7 p.m. on July 13, 2005, the respondent took up a matter not on the July 8, 2005 notice for the meeting, namely a resolution authorizing the first selectman to execute a memorandum of understanding with the state Department of Public Safety concerning participation in the FY 2004 State Homeland Security Grant Program. There was evidence that the agents for the respondent did not receive a reminder until July 11, 2005 concerning a resolution which was required and overdue, in order to avoid the loss of a $50,000 grant to the town.

 

10.  Section 1-200, G.S., states in relevant part:

 

(2) “Meeting” does not include…communication limited to notice of meetings of any public agency or the agendas thereof.

….

 

(6) “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; (emphasis added)

 

11.    Section 1-225, G.S., states in relevant part:

 

(a) 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 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.

….

 

(d) 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…. 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. 

….

 

(f) 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 1-227, G.S., states in relevant part:

 

The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting.  Such notice requirement shall not apply to the General Assembly, either house thereof or to any committee thereof.  Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed.  Renewal requests for notice shall be filed within thirty days after January first of each year. (emphasis added)

 

13.    Finally, §1-227, G.S., states in relevant part:

 

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.

 

14.  It is concluded with reference to the allegations of the complaint summarized at paragraph 2c) above, that the various telephone calls described at paragraph 6, above, were “communication limited to notice of meetings”, as that term is used in §1-200(2), G.S. Because these telephone calls did not constitute a “meeting”, there was no requirement that minutes be filed and therefore no violation of §1-225(a), G.S.

 

15.  It is concluded with reference to the allegations of the complaint summarized at paragraph 2d) above, that because the request to be given notice was more than one year old, as found at paragraph 7, above, it was no longer valid pursuant to §1-227, G.S. Moreover, because the special meeting at 4:30 p.m. on July 13, 2005 was noticed less than a week before it was held, §1-227, G.S., did not require the respondent to mail notice of the July 13, 2005 special meeting to the complainant. There was therefore no violation of §1-227, G.S., with reference to the special meeting at 4:30 p.m. on July 13, 2005.

 

16.  It is also concluded with reference to the allegations of the complaint summarized at paragraph 2d) above, that the respondent failed to meet its burden of proof to show that the executive session at its meeting convened at 4:30 p.m. on July 13, 2005 satisfied the requirements of §1-200(6)(D), G.S. Accordingly, it is concluded that respondent violated §1-225(a), G.S., when it held an executive session for a reason not proven to be within the terms of §1-200(6), G.S.    

 

17.  It is also concluded with reference to the allegations of the complaint summarized at paragraph 2d) above, that, based upon the findings set forth at paragraph 8, above, the respondent violated §1-225(f), G.S., when it held an executive session at its meeting convened at 4:30 p.m. on July 13, 2005, without first having “an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting….”

 

18.  It is also concluded with reference to the allegations of the complaint summarized at paragraph 2d) above, that, based upon the findings set forth at paragraph 8, above, the respondent filed timely minutes, which disclosed all persons in attendance, as required by §§1-225(a) and 1-227, G.S. There was therefore no violation of §§1-225(a) and 1-227, G.S., that related to the minutes. (The minutes reflected the deficiency of not recording a vote to go into executive session, but that was because the respondent, in fact, did not take such a vote.)

 

19.  It is finally concluded with reference to the allegations of the complaint summarized at paragraph 2e) above, that, based on the findings at paragraph 9, above, the respondent had the entire business day of July 12, 2005 to post an amended notice. Such an amended notice would have satisfied the twenty-four hour period, required by §1-225(d), G.S., for the special meeting convened at 7 p.m. on July 13, 2005. The respondent violated the provisions of §1-225(d), G.S., when it took up business not specified in the July 8, 2005 notice at the special meeting convened at 7 p.m. on July 13, 2005.

 

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

 

1.      Henceforth, the respondent shall comply with the requirement of §1-225(f), G.S., to have a two-thirds vote taken at a public meeting before entering into executive session; it shall comply with the requirement to have executive sessions only for the reasons set forth by §1-200(6), G.S.; and it shall only take up business at special meetings which is specified in the notice of the meeting, as required by §1-225(d), G.S.    

 

2.   With reference to §1-227, G.S., if the complainant wishes to continue to receive notice by mail of the meetings of the respondent, he should file a request forthwith and then again annually, before January 31^st, with the respondent. While no violation of §1-227, G.S. was proven in this case, as set forth at paragraph 15, above, the respondent should discontinue its practice, discussed at paragraph 7, above, of not mailing notices for meetings planned to be predominantly in executive session. If the notice continues to indicate that the meeting will be predominantly in executive session, the complainant will at least know that the meeting is going to be held and can decide for himself whether he wishes to attend the brief initial public portion of the meeting. In any case, however, the respondent must end its practice, as indicated in paragraph 1 of the orders, of shortcutting the process with “executive session meetings”.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 25, 2006.

 

________________________________

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:

 

Joseph Mingo

c/o Albert Speziali, Esq.

Five Shaw’s Cove, Suite 202

New London, CT 06320

 

Board of Selectmen, Town of East Lyme  

c/o Edward B. O’Connell, Esq.

Waller, Smith & Palmer, PC

PO Box 88

52 Eugene O’Neill Drive

New London, CT 06320

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-354FD/paj/2/2/2006