FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 7, 2010, 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 received and filed on October 13, 2009, the complainants appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondent violated the FOI Act by refusing to provide a copy of a draft report that the respondent discussed at a public meeting.  The complainants also alleged that the respondent failed to give proper notice of the meeting.  At the hearing in this matter, the complainants alleged that the respondent failed to give complainant Rice proper notice of the meeting.

 

3.      Section 1-225(d), G.S., provides:  “Notice of each special meeting of every public agency … shall be given not less than twenty-four hours prior to the time of such meeting.”

 

4.      Section 1-225(g), G.S., provides:

 

 In determining the time within which or by when a notice, agenda, record of votes or minutes of a special meeting or an emergency special meeting are required to be filed under this section, Saturdays, Sundays, legal holidays and any day on which the office of the agency … or the clerk of the applicable political subdivision … is closed, shall be excluded.

5.      It is found that the respondent called a meeting for 7:00 p.m. on Monday, October 12, 2009.  It is found that October 12, 2009 was a legal holiday following a weekend.

 

6.      It is found that the respondent posted notice of the October 12, 2009 meeting on Friday, October 9, 2009. 

 

7.      It is found that the respondent did not provide 24 hours notice of their October 12, 2009 meeting, in violation of §1-225(d), G.S.

 

8.      With respect to the complainant Rice’s claim that she did not receive adequate notice of the October 12, 2009 meeting, the complainant raised such claim for the first time at the hearing in this matter, and the respondent objected to testimony on the issue. 

 

9.      It is concluded that the complainant’s claim that she did not receive proper notice of the October 12, 2009 meeting was not fairly raised in the complaint, and the Commission declines to address it.

 

10.   With respect to the complainants’ allegation that the respondent failed to provide a copy of the draft report discussed at the October 12, 2009 meeting, §1-200(5), G.S., defines “public records” as follows:

 

Public records or files means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

11.   Section 1-210(a), G.S., provides, in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

12.   Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

13.   It is concluded that the records requested by the complainants are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

14.   Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure...”

 

15.   In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).

 

16.   Section 1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

 

17.   It is found that the chairman of the subcommittee prepared a draft report on deer management in the town and provided the draft to the other members of the subcommittee before the October 12, 2009 meeting.

 

18.   It is found that the subcommittee discussed the draft report at the October 12, 2009 meeting.

 

19.   It is found that the complainants asked to view a copy of the draft report at the meeting, but the chairman refused their request, claiming that distribution of the report to the general public at that time would have caused “chaos.”

 

20.   It is found that the issue of deer management in the town was contentious.

 

21.   It is found that the chairman of the respondent subcommittee determined, in his judgment, that the public interest in withholding the draft report clearly outweighed the public interest in disclosure, within the meaning of §1-210(b)(1), G.S.

 

22.   It is found, nevertheless, that the draft report was an intra-agency report comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S.  It is further found that the report was not prepared by a member of the subcommittee’s staff. 

 

23.   It is concluded, therefore, that the respondent subcommittee violated the FOI Act by failing to provide prompt access to the draft report.

 

24.   It is found that within days of the October 12, 2009 meeting, the respondent realized its error and disclosed the draft report.  It is further found that the respondent apologized to the complainants for the improper delay. 

 

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 comply with the notice of meeting requirements set forth in §1-225(d), G.S., and the promptness requirements set forth in §§1-210(a) and 1-212(a), G.S.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 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:

 

Nancy Rice and the Friends of Animals

777 Post Road, Suite 205

Darien, CT 06820

 

Subcommittee on Deer Management,

Conservation Commission, Town of Fairfield

C/o Richard H. Saxl, Esq.

P.O. Box 5042

Westport, CT 06881

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-602FD/sw/3/1/2010