FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 30, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.   

           

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.  It is found that a citizen made a request to the respondent that it examine certain conduct of the complainant, who is a public official of the town of Wilton and currently serving as Second Selectman (hereinafter “request”).[1]

 

3.  It is found that the respondent determined at its meeting held on August 6, 2005 that the request warranted further investigation and/or review.

 

4.  It is found that after being apprised of the request, the complainant discovered that the respondent did not have on file at the town clerk’s office any rules and regulations governing its procedures when handling requests.[2]  It is found that the complainant contacted the respondent in writing and complained about the lack of posted rules and procedures.

 

5.  It is found that, at its meeting held on August 30, 2005, the respondent convened in “closed session” and considered the rules and procedures to be followed in connection with its investigation and/or review of the request.

 

6.  It is found that at its meeting held on September 5, 2005, the respondent also convened in “closed session” and considered a “Statement of Procedures” to be utilized in the investigation and/or review of the request.[3]

 

7.  By letter of complaint dated September 6, 2005 and filed on September 7, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by discussing and drafting rules, regulations and procedures during an executive session held by the respondent on September 5, 2005.[4]

 

8.  Section 1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.” 

 

9.  Section 1-200(6), G.S., defines “executive session” to mean:

 

“…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.”

10.  The respondent does not contend that the “closed session” held on September 5, 2005 was convened pursuant to §§1-225(a) and 1-200(6), G.S., but rather pursuant to §§1-82a and 7-148h, G.S.

11.  Section 1-82a, G.S., as revised by P. A. No. 05-183, provides, in relevant part:

 

“ (a) Unless a judge trial referee makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent.  An evaluation of a possible violation of this part by the Office of State Ethics prior to the filing of a complaint shall be confidential except upon the request of the subject of the evaluation.  If the evaluation is confidential, any information supplied to or received from the Office of State Ethics shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by the ethics enforcement officer or staff of the Office of State Ethics….

 

(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.”

 

12.  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….” 

 

13.  It is found that the request constitutes an ethics “complaint alleging a violation” against the complainant, within the meaning of §§1-82a and 7-148h, G.S.

 

14.  It is found that the complainant did not waive confidentiality with respect to the respondent’s handling of the request.  It is also found that the complainant was aware that the September 5, 2005 meeting would be held, and apparently chose not to attend such meeting. [5]  There is no evidence in the record that the respondent prohibited or barred the complainant from attending the September 5, 2005 meeting.

 

15.  It is found that the rules/Statement of Procedures that were considered, discussed and drafted by the respondent specifically and inextricably pertain to the request before the respondent. 

 

16.  It is therefore concluded that, under the specific facts and circumstances of this case, the respondent’s consideration, discussion and drafting of the rules/Statement of Procedures that would apply to the request before the respondent, was appropriately conducted in a private “closed session”, pursuant to §§7-148h and 1-82(a), G.S., in the absence of a waiver of confidentiality from the complainant.

 

17.  It is further concluded that the respondent did not violate the FOI Act as alleged in the complaint.

 

18.  In light of the above, the complainant’s request made at the hearing in this matter that the Statement of Procedures be declared null and void is denied.

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

1.  The complaint is hereby dismissed.  

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 23, 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:

 

Marilyn C. Gould

c/o Thomas E. Minogue, Jr., Esq.

237 Elm Street

New Canaan, CT 06840

 

Council on Ethics,

Town of Wilton

c/o John Wayne Fox, Esq.

666 Summer Street

Stamford, CT 06901-1416

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-425FD/paj/8/28/2006