FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on May 26, 2006, at which time the complainant and the respondent appeared, stipulated to certain facts 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.  By letter of complaint filed November 30, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the Commission’s order in docket #FIC 2004-447, Karen Emerick v. Ethics Commission, Town of Glastonbury (“Emerick I”).

 

3.   The Commission takes administrative notice of its records and files in Emerick I.

 

4.  In Emerick I, the Commission found that the complainant filed an August 23, 2004 complaint with the respondent alleging a violation of the Glastonbury Code of Ethics.  The Commission also found that the respondent in that case 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 the complainant’s August 23, 2004 letter as “Other Communications” at its meeting.  The respondent then 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.”

 

5.  The Commission concluded in Emerick I that the respondent violated §1-225(a), G.S., by convening in executive session for an improper purpose at its September 13, 2004 meeting, and also found that the minutes of that meeting did not reflect what occurred in the improper executive session.  To remedy the denial of the public’s right to attend the September 13, 2004 meeting in its entirety, the Commission issued the following order, among others:

 

     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.        

 

6.  It is found that the respondent on November 14, 2005 amended the minutes of its September 13, 2004 meeting as follows (the “Amended Minutes”):

 

Item 11, Executive Session: Consideration of written citizen communication containing potentially confidential information.

 

Because the Commission has no professional staff to screen correspondence, Commissioners received and discussed correspondence from a citizen seeking to bring [an] accusation of unethical behavior against certain town officials.  Because the Commission was still refining its procedures and thus not yet prepared to accept formal inquiries, but because the Commission wished as a courtesy to the correspondent, to read the correspondence and determine whether there might be any way in which to more immediately address the concerns expressed, Commissioners read and briefly discussed the correspondence.  Commissioners came to agreement that the issue raised could only be treated as a formal Inquiry and only when the Commission would be fully equipped to address Inquiries.  No votes were taken.  All conclusions were reached by general agreement, with no objections raised by any commissioner.

 

7.  For a variety of reasons, the Commission finds that the Amended Minutes are not consistent with the facts previously found concerning the September 13, 2004 meeting, and do not comply with the Commission’s order in Emerick I. 

 

8.  First, it is found that the executive session at issue in Emerick I lasted approximately 40 minutes, but that the Amended Minutes do not reveal any details consistent with a discussion of that length.  While the Amended Minutes might arguably be a summary of the 40-minute discussion, they do not disclose what transpired to the same degree as would have been revealed by conducting a 40-minute session in public.

 

9.  Further, it is found that the Amended Minutes in fact contain no information beyond what the respondent had already stated in the public portion of its September 13, 2004 meeting.

 

10.  Further, in Emerick I, the respondent contended that it convened in executive session to avoid embarrassing a public employee or having allegations aired in public that were ultimately determined to have no substance.  Since nothing in the amended minutes could conceivably embarrass a public employee, and nothing in the amended minutes airs any allegations in public, it is found that either the respondent misrepresented its purpose for convening in executive session in Emerick I, or it failed to disclose matters discussed in executive session in its Amended Minutes.

 

11.  Additionally, at the hearing on Emerick I, the chairman of the respondent testified that the respondent actually discussed the “correspondence,” although the discussion was asserted to be different from discussion of the correspondence as an ethics complaint or inquiry.  However, it is found that nothing in the Amended Minutes reflects any details of the discussion of the correspondence, either as an ethics complaint or otherwise, beyond the bald assertion that the correspondence was “briefly discussed.” 

 

12.  The respondent contends that it did as well as it could under the circumstances, including contacting former members of the respondent who attended the September 13, 2004 meeting.

 

13.  It is found that, of the four members of the respondent present at the September 13, 2004 meeting, only two are currently members.

 

14.  It is found that the respondent circulated a draft of the Amended Minutes and sought additional recollections from its past members, but neither added anything.  Former Commissioners William H. Paetzold and John Sweeney both represented to the respondent that they could not recall any details of the September 13, 2004 executive session.

 

15.  It is found that, at the respondent’s February 27, 2006 meeting, counsel for the respondent advised full and thorough compliance with the Commission’s order in Emerick I, including a suggestion that those who were in attendance at the September 13, 2004 meeting “sit down with a pad of paper and scour their memories,” and to:

 

… take a pencil and a pad of paper and say, ‘we went in and chairperson Sergio said ‘X’ and my recollection is that we discussed ‘Y,’ etcetera.  The original order in this case from the Freedom of Information Commission was to try and create a record, that, as if the public was to read it, it would be as close to the public having sat and heard it occurring, as reasonably possible at this point in time removed from that meeting.  I’m not sure anybody is expecting it to be … verbatim of what was said, but that’s the exercise of what we are going to try to engage in.

 

16.  It is also found that Commissioner Thomas, who was present at the September 13, 2004 executive session, asked whether “it would be appropriate or even more efficient for the people who were at the meeting to get together and talk about it outwardly on the record.  To reconstruct it.”  Counsel for the respondent indicated that the respondent “can do that.”  Commissioner Thomas additionally indicated that “[t]he bottom line is, that the four commissioners that were present at the meeting need to do their very best to reconstruct that meeting in a way that is in writing and principle to FOI.”

 

17.  It is found that, at the same February 27, 2006 meeting, counsel for the respondent also advised the respondent that compliance with the Commission’s order in Emerick I was going to require “some level of greater detail” than was presented in the Amended Minutes, and that “we need more.” 

 

18.   It is found, however, that the respondent as a whole did not take the suggestions of its counsel or of Commissioner Thomas. 

 

19.  It is concluded that the respondent failed to comply with the Commission’s order in Emerick I.

 

20.  At the hearing, the complainant requested that her complaint be amended to add a request for civil penalties.  That request was denied by the hearing officer.  The Commission does not believe that imposing a civil penalty in this case will cure the memories of the respondent’s members, or produce better minutes of the September 13, 2004 executive session.

 

21.   However, the Commission also remains concerned that evidence of what transpires in the respondent’s future executive sessions, or any private meetings conducted pursuant to §§1-82a and 7-148h, G.S., might be similarly forgotten or lost with the passage of time.  Such losses not only impair the public’s right to know, should such sessions subsequently be determined to be improper, but also impair the Commission’s ability to decide cases concerning those sessions.

 

22.   Section 1-206(b)(2), G.S., provides in relevant part that:

 

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. 

 

            23.  The Commission does not believe that it would be fruitful to continue to order the respondent to comply with its order in Emerick I, given the apparent resistance of the majority of the respondent to comply, the passage of time, and the turnover in the respondent’s membership.

 

            24.  However, the Commission also believes that some meaningful relief is necessary.  

 

            25.  It is concluded that the relief appropriate to rectify the denial of the public’s right to attend the September 13, 2004 meeting in its entirety, and to rectify the denial of the public’s right to have the respondent comply with an order of the Commission to create minutes of executive sessions or other closed meetings of the respondent, is for the respondent, in the future, to make and maintain an audio recording of each of its executive sessions, or any other closed meeting.  In the event that a complaint is filed alleging a violation by the respondent of the open meetings provisions of the FOI Act, such recordings shall be made available to the Commission for in camera inspection.  Additionally, in the event that the Commission shall order the respondent to create minutes of an executive session or other closed meeting of the respondent, such recordings may be used to compare such minutes with what actually transpired at the respondent’s meeting.

 

           

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

 

            1.  Beginning 90 days following the issuance of this final decision, and continuing for a period of three years thereafter, the respondent shall make and maintain an electronic audio recording of each of its executive sessions, or any other meeting of the respondent that is closed to the public.  All such audio recordings shall be preserved for the entire three-year period, or for the period prescribed by the Public Records Administrator in accordance with §11-8a, G.S., whichever is greater.  The respondent may withhold from public disclosure each such audio recording unless it is found by the Commission that the session so recorded was held in violation of §1-225, G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 8, 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:

 

Karen Emerick

175 Coldbrook Road

South Glastonbury, CT 06073

 

Ethics Commission,

Town of Glastonbury

c/o Henry J. Zaccardi, Esq.

Shipman and Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-576FD/paj/11/13/2006