FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on February 22, 2010, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed June 11, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to file a schedule of regular meetings; by failing to make their June 4, 2009 meeting open to the public; by failing to make available an agenda of their June 4, 2009 meeting; by requiring the complainant to identify himself as a condition to attend the meeting; by prohibiting the complainant from recording the June 4 meeting with his cell phone; by convening in executive session to vote to fill vacancies in its membership and board of directors; by failing to ask the individuals whose appointments would be discussed whether they wanted that discussion to be held at an open meeting; and by failing to take a vote to convene in executive session, or to state a permissible reason for the executive session. The complainant requested that any votes taken at the meeting be declared null and void, and that a civil penalty be levied against the individually named respondents.

 

3.  It is found that the respondent Ledyard Fire Company did not file a schedule of its regular meetings for 2009 with the clerk of the town, or post such a schedule on the Fire Company’s web site.

 

4.  It is found that the respondents held a meeting in their firehouse on June 4, 2009 for the purpose of conducting certain votes concerning personnel.

 

5.  It is found that all of the doors to the firehouse were locked at the time of the meeting.

 

6.  It is found that the complainant observed the respondent Wilson approaching the firehouse at about the time of the commencement of the meeting and asked to attend the meeting.

 

7.  It is found that the respondent Wilson identified herself to the complainant as the chairman of the Ledyard Fire Company Board of Directors.

 

8.  It is found that Wilson told the complainant that the meeting was closed because it was “elections day,” but that she would go inside and verify whether the meeting was open or not.

 

9.  It is found that Wilson asked the complainant what his name was, that the complainant responded that he was a member of the public, and that Wilson responded that the meeting was only open to the respondent Fire Company’s members and ten invited taxpayers from the Town of Ledyard.  She asked the complainant if he was a taxpayer in the town of Ledyard, and he answered that he was not. 

 

10.  It is found that Wilson returned to the complainant outside the building about five minutes later, and invited him to enter the firehouse.  She informed him that the meeting would at some point be conducted in executive session, and that all persons who were not eligible to vote would be required to leave.

 

11.  It is found that no agenda was available for the meeting.

 

12.  It is found that Wilson announced at some point during the meeting that the respondents were convening in executive session, and told everyone who was not a voting member of the Fire Company to leave.

 

13.  It is found that the complainant stood and began an audio recording of the meeting with his cell phone, and asked Wilson to repeat the order for him to leave the meeting.

 

14.  It is found that Wilson demanded that the complainant stop the recording, stating that he did not have authorization to record anything.  Godoy responded that he was unaware of the fact that he needed any authorization to record, and Wilson replied that Godoy “should have known better,” and that he always needed prior authorization before recording anyone.  Godoy then stopped the audio recording.

 

15.  It is found that the complainant left the meeting (which required leaving the firehouse), and that the door to the firehouse closed and locked behind him, preventing him from re-entering the building.

 

16.  Section 1-225, G.S., provides in relevant parts:

 

      (a)  The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. …

 

      (b)  … The chairperson or secretary of any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed.

 

      (c)  The agenda of the regular meetings of every public agency … shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business ….

      …

 

      (e)  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.

 

      (f)  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.

 

17.  Section 1-200(6), G.S., provides in relevant part:

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting ….

 

18.  Section 1-226, G.S., provides in relevant part:

 

(a) At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-225, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. …

 

19.  It is concluded that the respondent Ledyard Fire Company violated §1-225(b), G.S., by holding a regular meeting without filing a schedule of its regular meetings.

 

20.  It is concluded that the respondent Ledyard Fire Company violated §1-225(c), G.S., by failing to file and make available an agenda of its June meeting.

 

21.  It is concluded that the respondents Wilson and the Ledyard Fire Company violated §1-225(a), G.S., by conducting a meeting, other than an executive session, that was not open to the public, by conducting a meeting without having filed a schedule, and by conducting a meeting in a building from which the public was locked out.

 

22.  It is concluded that the respondent Wilson violated §1-225(e), G.S., by requiring the complainant to furnish information about his taxpayer status as a condition to attending the public portion of the respondents’ June meeting.

 

23.  It is concluded that the respondent Wilson violated §1-226, G.S., by prohibiting the complainant from making an audio recording of the public portion of the June meeting.

 

24.  With respect to the exclusion of non-members of the Fire Company from the executive session, the respondents maintain that such exclusion was necessary to protect the integrity of the vote, which was confined to voting members.

 

25.  It is found, however, that the room in which the meeting was conducted was more than large enough to accommodate all of those present, and to segregate the voting members from the non-voting members.

 

26.  It is therefore found, even if it were permissible under the FOI Act to exclude the public from a voting process, it was not factually reasonable in this case. 

 

27.  It is also concluded that while §1-200(6)(A), G.S., permits an executive session to discuss the appointment of a public officer, it does not permit the vote on such an appointment to be conducted in executive session.  See, e.g., Docket #FIC 1998-286, O’Meara et al. v. Bristol (executive session to discuss personnel only permits discussion, not a vote).

 

28.  It is therefore concluded that the respondent Wilson, by ordering non-voting members of the Fire Company to leave, violated §1-225(a), G.S.

 

29.  With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

30.  The standard for when a violation is “without reasonable grounds” is analogous to the legal standard “without any substantial justification.”  Connecticut Department of Public Safety v. FOIC, et al., 1997 WL 537117 (Conn. Super.), affirmed, 247 Conn. 341 (1998).  Similarly, the phrase “without reasonable justification” has been construed to mean “entirely unreasonable or without any basis in law or fact.”  Id., quoting Bursinkas v. Department of Social Services, 240 Conn. 141, 155 (1997). 

 

31.  It is found that the respondent Wilson is the official directly responsible for the denial of the right of the complainant to attend the respondents’ June 6 meeting without identifying himself or his taxpayer status.

 

32.  It is found that the respondent Wilson is the official directly responsible for denying the complainant the right to make an audio recording of the June meeting.

 

33.  It is found that the respondent Wilson is the official directly responsible for denying the complainant and the public the right to attend the portion of the meeting during which voting was conducted. 

 

34.  The respondents maintain that Wilson was improperly identified as the chairman of the Fire Company Board of Directors, and therefore is not responsible for the violations described in paragraphs 31 to 33, above.

 

35.  The caption of this case has been amended to reflect that Wilson is a member, and not the chair, of the Fire Company Board of Directors.

 

36.  It is found however, that Wilson identified herself to the complainant as the chairman, asked him his name and required him to provide his taxpayer status as a condition to entering the building, and asserted the authority, without contradiction from the Board of Directors, both to clear the room of all non-voting members and to prohibit an audio recording of the meeting.

 

37.  It is found, therefore, that Wilson acted, with tacit acquiescence from the Board of Directors, as the person with the authority to act as described in paragraph 36, above.

 

38.  It is found that the respondent Wilson was given an opportunity to be heard, either in person or through her counsel.

 

39.  It is found that the respondent Wilson provided no reasonable grounds for the violations described in paragraphs 31-33 above, nor can the Commission discern any. 

 

40.  It is therefore found that the respondent Wilson’s violations of the FOI Act were without reasonable grounds within the meaning of §1-206(b)(2), G.S. 

 

41.  There is no evidence that respondent Chief McKernan was directly involved in the denial of the complainant’s FOI rights.

 

42.  The Commission believes that a civil penalty would have a deterrent effect in this case.  The Commission is specifically concerned that significant adverse consequences should flow from unreasonable violations of the FOI Act in such basic areas as conducting meetings in public buildings, not imposing preconditions to attendance, permitting recording, and permitting attendance at votes of the agency.

 

43.  With respect to the complainant’s request that the results of the June meeting be declared null and void, the Commission declines to do so.  Voiding the elections conducted at the meeting would punish those members and officers that were elected, rather than the individuals responsible for the violations. The Commission notes in this regard that it is not alleged that any person was improperly denied the right to any election or appointment at the June 6 meeting.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent Wilson shall, within 45 days of the notice of final decision in this matter, remit a civil penalty in the amount of $100 to the Commission.

 

            2.  Henceforth the respondents Wilson and the Ledyard Fire Company shall strictly comply with the notice and minutes requirements contained in §§1-225(a), (b), (c) and (f), G.S., and comply with the limits on executive sessions described in §1-200(6), G.S., and shall permit recording of its public meetings as provided by §1-226(a), G.S.

 

            3.  The complaint is dismissed as to the respondent Chief McKernan, against whom no evidence was produced of wrongdoing.

 

4.  The respondents are strongly encouraged to arrange for an educational workshop conducted by a Commission staff member.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 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:

 

João Godoy

156 West Main Street

Avon, CT 06001

Michael McKernan, Chief,

Ledyard Fire Company;

Karen Wilson, Member,

Board of Directors,

Ledyard Fire Company; and

Ledyard Fire Company

C/o Frank A. Manfredi, Esq.

Cotter, Greenfield, Manfredi & Lenes, P.C.

P.O. Box 105

Yantic, CT 06389

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-339FD/sw/5/14/2010