FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 7, 2009, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2009-346, Mary Ann Dostaler v. Water Development Task Force, Town of East Hampton; and Town Council, Town of East Hampton.

 

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 4, 2009, and filed with the Commission on June 5, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by preparing:

 

a.       An agenda that failed to adequately inform the public as to the parcels of real estate discussed during the executive session portion of the respondent’s May 15, 2009 special meeting (hereinafter “special meeting”), as well as the intended use of such parcels by the respondent and any legal action being pursued concerning such parcels; and

 

b.      Minutes of the special meeting that failed to adequately apprise the public of the parcels that were discussed during the executive session portion of such meeting.

 

The complainant requested that the respondent be required to attend an FOI Act training session.

 

3.  It is found that the respondent is an advisory task force, charged by the East Hampton town council with the authority to identify, negotiate, and recommend properties for the purpose of acquiring a viable water source for the Town of East Hampton.

 

4.  It is found that the respondent held a special meeting on May 15, 2009.

 

5.  It is found that the respondent timely noticed the special meeting on May 15, 2009, which notice provided the date, time and place of the meeting as well as the agenda, which provided in relevant part as follows:

 

3)         Executive Session – Land Acquisition/Pending Litigation

 

6.  It is found that, during the May 15, 2009 executive session, the respondent discussed matters pertaining to securing a specific water source for the Town of East Hampton, including the right of the Town to initiate eminent domain proceedings against the properties being discussed.  During the executive session, the respondent specifically discussed, properties it identified at the hearing on this matter as “St. Clements,” “Greer,” “Middlesex Land Trust,” and “Barton.”

 

7.  With respect to the allegations described in paragraph 2, above, §1-225, G.S., provides, in relevant part:

 

“(a) [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….”

 

“(d) [n]otice of each special meeting of every public agency…shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the…[town] clerk…. The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency….”

 

8.  Section 1-200(6), G.S., defines “executive session” to include:

 

…a meeting of a public agency at which the public is excluded for one or more of the following purposes: .…(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; … (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 ….

 

9.  Section 1-200(9), G.S., provides that:

 

(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

10.  At the hearing on this matter, the respondent claimed that it is not required to place the name of the property it is contemplating purchasing on its agenda by virtue of §1-200(6)(D), G.S., which permits them to avoid publicity regarding the property if such publicity would cause a likelihood of increased price.  The respondent also claimed that the exemption for “strategy and negotiations with respect to pending claims and pending litigation” is often summarized by the Town on an agenda as simply “pending litigation,” pursuant to §1-200(6)(B), G.S.  The respondent further claimed that “pending litigation” can include not only matters in suit but the agency’s discussions regarding instituting a possible legal action or enforcing a legal right, such as eminent domain, in the absence of an equitable agreement resulting from real estate negotiations. 

 

11.  The complainant reiterated her contention that the respondent’s agenda item 3, described in paragraph 5, above, failed to adequately inform the public about the intent and business to be transacted during the May 15, 2009 executive session portion of the special meeting.  The complainant specifically claimed that the agenda item and the minutes of the special meeting were not adequate or sufficient since they failed to provide the public with the name of the parcels being discussed, the name of any related pending litigation and the individuals involved in such litigation.  Consequently, the complainant claimed that the matter was not “‘pending’; rather legal action was being considered by the [respondent], presumably relative to a land acquisition.”

 

12.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

13.  It is found that the respondent did not identify the properties being considered as East Hampton water sources on the respondent’s special meeting agenda and minutes because of concern that publicity about the properties might lead a speculator who learned of the town’s interest in the properties to compete with the town for the purchase of such property rights, thus driving up the price.

 

14.  At the hearing on this matter, the East Hampton town council chair and town manager, who are also members of the respondent, testified credibly and without contradiction that publicity regarding purchasing property rights involving the “Greer” and “St. Clements” properties, would have caused a likelihood of increased price.  They also testified that the town’s efforts in securing easements over the adjoining “Middlesex Land Trust” and “Barton” properties were not public knowledge prior to August 4, 2009 for the same reasons.

 

15.  It is concluded that requiring the respondent to name in its agenda the properties it is intending to discuss in executive session, where publicity regarding such sites, leases, sales, purchases or constructions would cause a likelihood of increased price, would defeat the purpose of §1-200(6)(D), G.S.

 

16.  It is also concluded that there is no requirement in the FOI Act that the respondent detail the discussions at its executive sessions in its minutes.

 

            17.  It is found, however, that the respondent’s May 15, 2009 special meeting agenda that listed “Land Acquisition” was insufficient because it failed to adequately apprise the public that the purpose of the executive session was to secure a water source.

 

18.  It is concluded, therefore, that the respondent violated §1-225(d), G.S., by failing to adequately describe the business to be discussed under the item “Land Acquisition.”

 

19.  As for the respondent’s additional claim regarding the manner in which it listed “Pending Litigation” on its May 15, 2009 special meeting agenda, it is found that "Pending Litigation" does not sufficiently state or identify a proper purpose for an executive session as required under §1-200(6)(B), G.S., and defined in §1-200(9), G.S.

 

20.  It is further found that the respondent may have convened in executive session for a proper purpose, but such fact could not have been determined from the information provided to the public on the respondent’s May 15, 2009 special meeting agenda.

 

            21.  It is concluded, therefore, that the respondent violated §1-225(d), G.S., by failing to adequately apprise the public of the business to be transacted under the item “Pending Litigation.”

 

22.  Based upon the facts and circumstances of this case the Commission declines to require that the respondent attend an FOI Act training session.

 

 

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 notice provisions of §1-225(d), G.S.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 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:

 

Mary Ann Dostaler  

56 William Drive

East Hampton, CT 06424

 

Water Development Task Force,

Town of East Hampton

C/o Jean M. D’Aquila, Esq.

D’Aquila Law Office, LLC

100 Riverview Ctr., Suite 205

Middletown, CT 06457

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

FIC/2009-333FD/sw/3/26/2010