FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 29, 2009, at which time the complainants 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 dated April 28, 2009, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to conduct its meeting on April 27, 2009 in compliance with the FOI Act.  Specifically, the complainants alleged that:

 

[a].  Members of the public were deliberately denied access to a public meeting[;]

 

[b].  Those individuals who had expected to speak, were deliberately distracted from observing the meeting.  This distraction was created on purpose by the CCEF [Connecticut Clean Energy Fund] Executive Board[;]

 

[c].  ... [T]he executive session was improperly used[;] and

 

[d]. … [T]he public was denied the right to view much of the Board discussion and deliberations.

 

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

 

4.      Section 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.

 

5.         Section 1-200(6)(E), G.S., permits an executive session for:  “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.”

 

6.          Section 1-210(b)(5)(B), G.S., provides that disclosure is not required of “commercial or financial information given in confidence, not required by statute …”

 

7.         It is found that, more than a week before the respondent’s meeting of April 27, 2009, the respondent anticipated that attendance at the meeting would be much larger than usual, due to a controversial agenda item concerning whether to loan money to Plainfield Renewable Energy, LLC (“PRE”).

 

8.         It is found that the respondent realized the need to accommodate a larger audience.  It is found that the respondent initially considered moving the location of the meeting, but ultimately rejected that option because the alternative location was at some distance from the regularly scheduled meeting place and, therefore, might be confusing to people trying to find the new location.

 

9.         It is found that the respondent decided, instead, to accommodate overflow attendance in two conference rooms within the same building as the respondent’s meeting.  It is further found that the respondent connected the overflow rooms to the respondent’s meeting room by a speakerphone that provided an audio feed from the respondent’s meeting.  It is found that the speakerphone did not have a video component.  It is found, therefore, that people listening to the meeting in the overflow rooms could only hear the respondent’s meeting, but could not see it at all.

 

10.      It is found that the respondents appointed two of its staff members to accompany members of the public to the overflow rooms and to explain where the restrooms were.  It is found that each of the staff members remained in an overflow room throughout the respondent’s meeting.

 

11.      It is found that some of the complainants in this matter were seated in the overflow rooms.  Two of the complainants testified that the speakerphone reception was inadequate, and that it was difficult, if not impossible, to understand what was being said in the respondent’s meeting.  Although the staff members who were present in the overflow rooms testified that they were able to hear the meeting through the speakerphone, it is found that the speakerphone failed to provide clear transmission, at least to the members of the audience who are complainants in this matter.

 

12.      It is found that the members of the respondent did not identify themselves for the benefit of the overflow room audience each time they spoke, so the overflow audience was unable to know who was speaking.  Furthermore, it is found that at least one member of the respondent attended the meeting via speakerphone, thereby adding another layer of audio difficulty for people in the overflow rooms.

 

13.      It is further found that those in the overflow room were unable to observe the “body language and general demeanor of those on the panel,” as one complainant stated.

 

14.     The respondent contends that it did the best it could under the circumstances to accommodate the larger than usual attendance.  The respondent also contends that no one brought any problems with the intercom to the respondent’s attention during the meeting.

 

15.     The respondent relies on Advisory Opinion #41, In the Matter of a Request for Advisory Opinion, Town Counsel, Town of Seymour (1980) to support its claim that the audio access to the meeting was sufficient to make the meeting “open to the public” seated in the overflow rooms, within the meaning of §1-225(a), G.S.  In Advisory Opinion #41, the FOI Commission suggested “what means a public agency must use to assure compliance with the provision of [§1-225(a), G.S.,] when it wishes to conduct all or part of a meeting by telephone or other electronic equipment.” 

 

16.     Advisory Opinion #41, however, concluded that compliance with §1-225(a), G.S., “requires that a meeting of a public agency be conducted in such a manner that every person in attendance has the opportunity to observe all the discussions and actions transpiring at the meeting.  (Emphasis added.)”  

 

17.     It is found that “observe” means to see, watch, perceive, or notice.”  Dictionary.com. Dictionary.com Unabridged. Random House, Inc. http://dictionary.reference.com/browse/observe (accessed: October 23, 2009).

 

18.     It is found that people who attended the respondent’s meeting in the overflow rooms were denied the opportunity to observe all the discussions and actions transpiring at the meeting.

 

19.     Advisory Opinion #41 sets forth “minimum conditions” that must be met when an agency wishes to conduct its meeting by telephone or other electronic equipment: 

 

1.   Facility must be made for that portion of the public that wishes to attend the meeting to be present at a place where the greatest number of participating agency members are located.

 

2.   If any agency member or other participant in the meeting utilizes physical or demonstrable material in the course of the proceedings, that material, or a copy or facsimile of same, must be present in the place where the public is located. That material also must be available for public observation and inspection, unless otherwise exempt from disclosure under Conn. Gen. Stat. §l-19(b) [predecessor statute to §1-210(b), G.S.].

 

3.   All those in attendance at the meeting, at whatever location, must be able to hear and identify adequately all participants in the proceedings, including their individual remarks and votes. 

 

20.     Although Advisory Opinion #41 suggests that a meeting conducted by speakerphone might satisfy the minimum conditions, described in paragraph 19, above, it is concluded that the Opinion did not contemplate a meeting where the agency meets in person but restricts access to the in-person meeting and substitutes, instead, access by speakerphone for some members of the public, as was the case for those members of the public who had to listen to the respondent’s meeting in an overflow room.

 

21.     It is found that the respondent failed to satisfy the minimum conditions set forth in Advisory Opinion #41.  It is found that the respondent failed to accommodate the members of the public who wished to be present and observe at a place where the greatest number of participating agency members were located (Condition 1).  It is also found that the complainants who attended the respondent’s meeting in the overflow room were unable to identify adequately all participants in the proceedings, including their individual remarks and votes (Condition 3).

 

22.     The respondent relies on Docket #FIC 2008-356; Nancy Dickal v. Richard D. Schultz, Planning Administrator, City of Shelton; et al (December 10, 2008) to support its argument that the respondent cannot be held responsible for violating the open meeting provisions of the FOI Act, because the complainants failed to alert the respondent that the audio system was not functioning adequately. 

 

23.     It is found, however, that in Dickal, it was reasonable for the respondent agency not to know that members of the public who were standing in the hall outside the meeting wished to “observe or hear” the meeting but were unable to do so.  It is found that in this matter, the respondent agency knew, or should have known, that people in the overflow room could not observe the meeting and that members of the respondent did not identify themselves when they spoke. 

 

24.     It is concluded, therefore, based on the facts and circumstances of this case, that the respondent’s meeting of April 27, 2009 was not “open to the public,” within the meaning of §1-225(a), G.S.

 

25.     It is concluded that the respondent violated §1-225(a), G.S., as alleged by the complainants in paragraph 2.a, above.

 

26.     With respect to the complainants’ allegation, described in paragraph 2.b, above, that the respondent intentionally distracted members of the public who wished to speak at the meeting from observing the meeting, §1-225(e), G.S., provides:

 

No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance.

 

27.      It is found that at the start of the meeting, the respondent announced that, due to the anticipated large number of people who wished to make public comment on the controversial agenda item, speakers would be limited to three minutes per person or organization, that only one speaker per organization would be permitted to speak, and that all those who were not intending to speak should listen to the meeting in an overflow room.

 

28.      It is further found that the respondent preferred that the speakers remain in the meeting room in order to facilitate the public comment portion of the meeting.

 

29.      It is found that the complainants were surprised at the respondent’s new rule that only one speaker would be permitted from their organization.  It is further found that the complainants were distracted from the first part of the meeting by having to discuss and decide who from their organization would speak and attend the meeting in person, and who would listen to the meeting in the overflow rooms.

 

30.     Although the complainants allege that the respondent conditioned attendance at the meeting upon speaking at such meeting, it is found that the respondent did not bar those who chose not to speak from attending the meeting in person.   

 

31.     Accordingly, it is concluded that the respondent did not violate §1-225(e), G.S.

 

32.     It is found that the respondent did not intentionally distract members of the public who wished to speak at the meeting. 

 

33.     It is concluded that regulating the public’s opportunity to speak at a meeting is not a violation of the FOI Act because nothing in the FOI Act grants the public the right to speak at a meeting.   Wesley S. Lubee, Jr. v. Town Council, Town of Wallingford; Docket #FIC 2002-127 (September 25, 2002).

 

34.     Advisory Opinion #35; In the Matter of a Request for Advisory Opinion; Town Counsel, Town of North Haven (December 13, 1978) recognizes:

 

The FOI Act neither explicitly mandates nor prohibits public comments at meetings of any public agency. Consequently, such a practice is entirely within the discretion of each agency, unless required or restricted by other applicable law.

The Commission, however, is strongly in favor of public participation at agency meetings, to whatever extent possible. It is the Commission's firm belief that the spirit of the FOI Act, and the concept of open government that it fosters, is not limited to public agencies disclosing their records and providing access to their meetings. If open government is to become a reality, public agencies must open their proceedings to receive the concerns and opinions of the people whom they serve.

 

35.      It is concluded that the respondent did not violate the FOI Act as alleged by the complainants in paragraph 2.b, above. 

 

36.     With respect to the complainants’ allegation of an improper executive session, described in paragraph 2.c. and 2.d, above, it is found that the respondent followed proper procedure, pursuant to §1-225(f), G.S., to enter into executive session, which lasted about 90 minutes.  It is found that in the executive session, the respondent discussed PRE’s financial information, which had been given to the respondent upon the respondent’s promise to maintain its confidentiality. 

 

37.      It is found that the respondent reconvened its regular meeting at the end of the executive session.  It is further found that the members of the respondent then discussed PRE’s loan request in open session.  It is found that such discussion lasted about 25 minutes, during which time the members of the respondent articulated their views and then voted to make the loan.

 

38.     The complainants complain that the public discussion that followed the executive session was perfunctory and that the true discussion took place in executive session.

 

39.      It is found, however, that the executive session was proper pursuant to §§1-200(6)(E) and 1-210(b)(5)(B), G.S.

 

40.     It is concluded that the respondent did not violate the FOI Act as alleged by the complainants in paragraph 2.c and 2.d, above.

 

41.     It is found that although the respondent approved the loan to PRE, the company subsequently withdrew its request for funding and the respondent will not be providing money to PRE that was approved at the April 27, 2009 meeting.

 

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 §1-225(a), G.S.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 2010.

 

____________________________

S. Wilson

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:

 

Robert Noiseux, Carolyn Noiseux,

Eleanor Orlomoski, June Leiss,

Alison Haber, Steven Orlomoski; and

Concerned Citizens of Plainfield

C/o Robert & Carolyn Noiseux

447 South Canterbury Road

Canterbury, CT 06331

 

Board of Directors, Connecticut Clean Energy Fund

C/o Kathleen A. St. Onge, Esq., 

Peter G. Boucher, Esq. and Christopher J. Novak, Esq.

Halloran & Sage, LLP

225 Asylum Street

Hartford, CT 06103

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-254FD/sw/1/19/2010