FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Robert Fromer and David Bingham, | |||
| Complainants | |||
| against | Docket #FIC 2005-590 | ||
|
State of Connecticut, State Properties Review Board, |
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| Respondent | November 8, 2006 | ||
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, dated and filed on December 6, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:
(i) denying them full and unfettered access to the November 17, 2005 meeting;
(ii) failing to state in the November 17, 2005 meeting agenda that it would convene in executive session, and failing to specify in such agenda the specific executive session provision that permitted the respondent to convene in executive session;
(iii) permitting a member of the respondent, who did not hear the evidence presented during the November 17, 2005 executive session, to vote on the underlying issue addressed by the respondent at the November 17, 2005 meeting;
(iv) failing to demonstrate that the discussion conducted during the November 17, 2005 executive session was permissible within the meaning of §1-200(6)(D), G.S.;
(v) voting in executive session on November 17, 2005; and
(vi) engaging in an ongoing practice of meeting in executive session.
The complainants requested that the commission declare null and void the vote taken during the November 17, 2005 executive session, and also impose the maximum civil penalty permitted by the law upon the respondent.
3. It is found that on or about November 2, 2005, the Department of Public Works entered into an agreement whereby the state of Connecticut agreed to convey a portion of the Norwich State Hospital property to the town of Preston (hereinafter "agreement"). It is found that the agreement required the approval of the respondent pursuant to §4b-3, G.S., which provides, in relevant part:
(f) The State Properties Review Board shall review real estate acquisitions, sales, leases and subleases proposed by the Commissioner of Public Works, the acquisition, other than by condemnation, or the sale or lease of any property by the Commissioner of Transportation under subdivision (12) of section 13b-4, subject to section 4b-23 and subsection (h) of section 13a-73 and review, for approval or disapproval, any contract for a project described in subsection (h) of section 4b-91. Such review shall consider all aspects of the proposed actions, including feasibility and method of acquisition and the prudence of the business method proposed. The board shall also cooperate with and advise and assist the Commissioner of Public Works and the Commissioner of Transportation in carrying out their duties. The board shall have access to all information, files and records, including financial records, of the Commissioner of Public Works and the Commissioner of Transportation, and shall, when necessary, be entitled to the use of personnel employed by said commissioners. The board shall approve or disapprove any acquisition of development rights of agricultural land by the Commissioner of Agriculture under section 22-26cc.
4. It is found that the respondent held a regular meeting on November 17, 2005 during which it reviewed the agreement (hereinafter “the meeting”).
5. It is found that the entire meeting was conducted in executive session and that such has been the practice and custom of the respondent when it holds its meetings.
6. It is found that the respondent’s practice of conducting all of its meetings in executive session is based on the respondent’s reliance, since 1976, upon a legal opinion issued to the respondent by the Office of the Attorney General (hereinafter “A/G’s office”). At the time, the respondent asked the A/G’s office whether the meetings and records of the respondent are excluded from the provisions of the FOI Act. In a legal opinion dated January 13, 1976 to the respondent, the A/G’s office advised the respondent that virtually all of the respondent’s business could, and should be conducted in executive session based on the A/G’s office’s analysis and understanding of the applicable laws. Specifically, the A/G’s office reviewed P.A. No. 75-425 (the legislation that established the respondent) and P.A. No. 75-342 (the Freedom of Information Act).
7. With respect to the allegations described in paragraph 2i and 2iv, above, §1-225(a), G.S., provides:
(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.
8. Section 1-200(6), G.S., further provides:
“Executive sessions” means 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.
9. It is found that the respondent permitted the complainants to attend only the portion of the meeting during which the complainants made a presentation to the respondent concerning the agreement.
10. It is found that the respondent failed to prove that it convened in executive session for a permissible purpose, within the meaning of §1-200, G.S., and specifically, failed to prove that §1-200(6)(D), G.S., permitted the respondent to convene in executive session on November 17, 2005.
11. It is therefore concluded that the respondent improperly denied the complainants access to the entire meeting, thereby violating §1-225(a), G.S.
12. With respect to the allegation described in paragraph 2ii, above, §1-225(f), G.S., provides:
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].
13. It is found that prior to convening in executive session on November 17, 2005, the respondent did not state a permissible reason, within the meaning of §1-200, G.S., to convene in executive session. It is found however, that the respondent's meeting agenda indicated that the topic to be addressed by the respondent was the "Purchase and Sale Agreement, dated November 2, 2005" concerning the "Norwich State Hospital" property.
14. It is concluded that the respondent violated §1-225(f), G.S., on November 17, 2005, by failing to state a permissible reason to convene in executive session, within the meaning of §1-200, G.S., prior to convening in such session.
15. With respect to the allegation described in paragraph 2iii, above, it is found that the complainants have not alleged any conduct that violates the FOI Act.
16. With respect to the allegation described in paragraph 2v, above, it is found that the respondent voted in executive session on November 17, 2005 to approve the agreement.
17. This Commission has repeatedly held that only discussion should take place during an executive session, and that all voting should take place during the public portion of a meeting.
18. It is therefore concluded that the respondent violated the FOI Act by voting in executive session on November 17, 2005.
19. With respect to the allegation described in paragraph 2vi, above, as was found earlier, the respondent has for the last thirty years conducted all of its meetings in executive session.
20. It is concluded that the respondent’s practice of conducting all of its meetings in executive session does not comply with the requirement of §1-225(a), G.S., that all meetings, except executive sessions, be conducted in public.
21. With respect to the complainants' request that the respondent's vote regarding the agreement be declared null and void, and that a civil penalty be imposed, §1-206(b)(2), G.S., in relevant part, provides:
The commission may declare null and void any action taken at any meeting which a person was denied the right to attend ... In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars....
22. It is found that subsequent to the meeting, the complainants requested, and the respondent provided, the minutes of the entire meeting that was conducted in executive session. It is found that such minutes are extensive and available to the public.
23. It is also found that the respondent, at a regular meeting held in public on March 27, 2006, voted in public to ratify its November 17, 2005 approval of the agreement. It is also found that, as of the date of the hearing in this matter, the respondent was reviewing its notice and meeting practices with the A/G’s office with a view to instituting appropriate changes that conform to the requirements of the FOI Act.
24. As was found earlier, the respondent relied on a 1976 legal opinion as the basis for conducting all of its meetings in executive session. It is also found that no evidence was presented at the hearing in this matter that the respondent's practice of conducting its meetings in executive session was challenged between 1976 to the present, and that the respondent continued to engage in such practice in spite of a challenge.
25. It is concluded that the violations found above, because they occurred in reliance on legal advice, were not without reasonable grounds. Consequently, the request for a civil penalty is denied.
26. Both the complainants and the respondents requested, and the Commission, in considering a remedy in this case, takes administrative notice of the following FOI Commission final decisions: FIC 2004-376, Clarence Jennings v. Board of Selectmen, Town of Easton, FIC 89-159, Demetrius Tasoulas and TMS Associates v. East Lyme Zoning Commission, and FIC 89-158, Martin Gottesdiener v. East Lyme Zoning Commission (these decisions requested by the complainants); FIC 94-350, David J. Drury and The Hartford Courant v. West Hartford Board of Education, FIC 1999-553, Thomas R. Carozza and Waterbury Police Union, Local 1237 v. Joseph Carlson, Chairman, Budget Advisory Council, State of Connecticut et al., FIC 94-12, Stonington Education Association v. Stonington Board of Selectmen, and FIC 2004-460, Alan Plofsky v. State of Connecticut, State Ethics Commission (these decisions requested by the respondent).
27. After review of the entire record, and based upon the specific facts and circumstances of this case, the Commission in its discretion declines to declare null and void the vote taken by the respondent to approve the agreement.
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 of the FOI Act.
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:
State of Connecticut, State Properties
Review Board
c/o Susan Quinn Cobb, Esq.
Assistant Attorney General
PO Box 120
55 Elm Street
Hartford, CT 06141-0120
and
Robert W. Clark, Esq.
Assistant Attorney General
PO Box 120
55 Elm Street
Hartford, CT 06141-0120
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-590FD/paj/11/9/2006