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 respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2009-333, Mary Ann Dostaler v. Water Development Task Force, Town of East Hampton.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter dated June 22, 2009 and filed with the Commission on June 23, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by preparing agendas that failed to adequately inform the public as to the intent and nature of the business being transacted during the executive session portions of the respondent task force’s June 12, 2009 special meeting and the respondent council’s June 23, 2009 special meeting (hereinafter “special meetings”).  The complainant specifically claimed at the hearing on this matter that the respondents failed to provide adequate information about parcels of real estate discussed during such special meetings, as well as the intended use of such parcels by the respondents and any legal action being pursued concerning such parcels. 

 

3.  It is found that the respondent task force is an advisory task force, charged by the respondent 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 task force held a special meeting on June 12, 2009, and that members of the respondent council attended such meeting.

 

5.  It is found that the respondent task force timely noticed the special meeting of June 12, 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 June 12, 2009 executive session, the respondent task force 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 task force specifically discussed, properties it identified at the hearing on this matter as “St. Clements,” “Greer,” “Middlesex Land Trust,” and “Barton.”

 

7.  It is found that the respondent council held a special meeting on June 23, 2009, and that members of both respondents attended such meeting.

 

8.  It is found that the respondent council timely noticed the special meeting of June 23, 2009, which notice provided the date, time and place of the meeting as well as the agenda, which provided in relevant part as follows:

 

2)         Executive Session – Land Acquisition/Pending Litigation

 

9.  It is found that, during the June 23, 2009 executive session, the respondents discussed matters pertaining to the progress of the respondent task force in 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.  The respondents specifically discussed the properties identified as “St. Clements,” “Greer,” “Middlesex Land Trust,” and “Barton.”

 

10.  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….”

 

11.  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 ….

 

12.  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.

 

13.  At the hearing on this matter, the respondents claimed that they are not required to place the name of the property they are contemplating purchasing on their agendas 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 respondents 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 respondents 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. 

 

14.  The complainant reiterated her contention that the respondents’ agenda items, described in paragraphs 5 and 8, above, failed to adequately inform the public about the intent and business to be transacted during the June 12, 2009 and June 23, 2009 executive session portions of the special meetings.  The complainant specifically claimed that such agenda items of the special meetings 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.  Consequently, the complainant claimed that the matter was not “‘pending’; rather legal action was being considered by the [respondents], presumably relative to a land acquisition.”

 

15.  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.”

 

16.  It is found that the respondents did not identify the properties being considered as East Hampton water sources on the respondents’ June 12, 2009 and June 23, 2009 special meeting agendas 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.

 

17.  At the hearing on this matter, the East Hampton town council chair and town manager, who are also members of the respondent task force, 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.

 

18.  It is concluded that requiring the respondents to name in its agendas 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.

 

19.  It is found, however, that the respondents’ June 12, 2009 and June 23, 2009 special meeting agendas that listed “Land Acquisition” were insufficient because they failed to adequately apprise the public that the purposes of the executive sessions were to secure a water source.

 

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

 

21.  As for the respondents’ additional claim regarding the manner in which they listed “Pending Litigation” on their June 12, 2009 and June 23, 2009 special meeting agendas, 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.

 

22.  It is further found that the respondents may have convened in executive sessions for a proper purpose, but such facts could not have been determined from the information provided to the public on the respondents’ June 12, 2009 and June 23, 2009 special meeting agendas.

 

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

 

24.  Based upon the facts and circumstances of this case the Commission declines to require that the respondents 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 respondents 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/2009-346FD/sw/3/26/2010