FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 21, 2006, 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.  By letter dated June 1, 2006 and filed on June 2, 2006, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.  convening improperly in executive session, during its May 8, 2006 meeting, to discuss “current cases being investigated” by the Middlebury Police Department; and

 

b.  exceeding its authority in reviewing “confidential investigative material.”

 

3.  The complaint further alleged that the minutes of the May 8, 2006 meeting “do not support the people who were invited in.”

 

4.   The complainant requested that this Commission order that “everything discussed in the [e]xecutive [s]ession [be] made public.”

 

5.  At the hearing in this matter, the respondent submitted a copy of the amended minutes of the May 8, 2006 meeting, which reflect who was in attendance at the May 8, 2006 executive session.  The complainant therefore withdrew the allegation described in paragraph 3, above.  The complainant also withdrew the allegation described in paragraph 2.b, above.

 

6.  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.”

 

7.  Section 1-200(6), G.S., provides, in relevant part, that “[e]xecutive sessions means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  … (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.”

 

8.  It is found that the respondent held a regular meeting on May 8, 2006.

 

9.  It is found that the respondent convened in executive session during the May 8, 2006 meeting, for the purpose of discussing two criminal cases with the town’s acting chief of police and the town’s attorney.  It is further found that one of the cases was “open” or pending at the time of the executive session, and the other was “closed” or no longer pending.

 

10.  At the hearing, the respondent contended that the executive session was appropriate, relying generally on the exemption at §1-210(b)(3), G.S.

 

11.    Section  1-210(b)(3), G.S., permits the nondisclosure of:

 

[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of  (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault…or injury or risk of injury, or impairing morals…or (G) uncorroborated allegations subject to destruction….

 

12.  It is found that the respondent did not have the records physically present in the room during the May 8, 2006 executive session.  It is found further that the respondent did not bring the records to the hearing in this matter.

 

13.  At the hearing in this matter, the respondent failed to specifically identify which subsection of §1-210(b)(3), G.S., it was relying on as a basis for its argument that the executive session was appropriate under §1-200(6)(E), G.S.  On post-hearing brief, the respondent contended that §§1-210(b)(3)(C), (D), and (G), G.S., provided bases for an appropriate executive session under §1-200(6)(E), G.S.

 

14.  It is found that the respondent failed to present any evidence on the record to prove the applicability of  §§1-210(b)(3)(C), (D), and (G), G.S.  Therefore, it is concluded that the respondent failed to prove that there were any exempt records discussed during the executive session, which could have provided a basis for such executive session under §1-200(6)(E), G.S.

 

15.  Consequently, it is concluded that the respondent improperly excluded the public from a portion of its May 8, 2006 meeting, since the discussion described in paragraph 9 does not constitute a proper purpose for an executive session within the meaning of §1-200(6), G.S.  It is therefore further concluded that the respondent violated  §1-225(a), G.S., as alleged in paragraph 2.a, above.

 

            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, amend the minutes of its May 8, 2006 meeting to reflect the substance of the discussion that took place during the executive session portion of that meeting.

 

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

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 2007.

 

________________________________

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:

 

Ralph Carpinella

Box 471

411 Austin Road

Waterbury, CT 06720

 

Police Commission,

Town of Middlebury

c/o Dana A. D’Angelo, Esq.

PO Box 1251

Middlebury, CT 06762

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-281FD/paj/3/20/2007