FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 25, 2010, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  A Report of Hearing Officer, dated and issued on July 23, 2010, in the above-captioned matter (the “hearing officer report”), was considered by the Commission at its regular meeting on August 25, 2010 (the “August 25 meeting”).  At such meeting, the Commission voted to remand the hearing officer’s report to the hearing officer and directed the hearing officer to reconsider certain findings of fact and conclusions of law regarding the allegations contained in 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.  It is found that the respondent commission (hereinafter “CSC”) conducted a special meeting on August 21, 2009 (hereinafter “the meeting”). 

 

3.  By email dated September 19, 2009, and filed September 21, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.  entering an executive session during the meeting to discuss the job performance of the personnel director of the city of Bridgeport, after such employee had objected to the executive session pursuant to §1-200(6)(A), G.S.;

 

b.  failing to timely make available the minutes of the meeting and to timely post such minutes on the CSC website, as required by §1-225(a), G.S.

 

c.  inappropriately requiring the complainant to submit a request for copies of the minutes of the meeting “in writing,” when the complainant had already submitted a request by email.     

 

4.  The complainant sought civil penalties against the respondents, although she did not name a specific individual against whom she believed the imposition of a civil penalty was appropriate. 

 

5.  At the conclusion of the March 25, 2010 hearing on this matter, the complainant presented the Commission and the respondents with a brief, wherein the complainant states that the complaint in this matter sets forth the following five violations:

 

            “1.  The Civil Service Commission entered Executive Session in violation of General Statutes Section 1-200(6), which states in relevant part, “Executive session” 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: [Emphasis in original brief]

 

            2.  The Civil Service Commission did not make the votes cast by its members at said August 21, 2009 meeting available for public inspection within forty-eight hours, as required by statute.

 

            3.  The Civil Service Commission did not make the minutes of the said August 21, 2009 meeting available for public inspection within seven (7) days of the said meeting, as required by statute.

 

            4.  The Civil Service Commission did not post the minutes of the August 21, 2009 meeting, within seven (7) days of said meeting on the City of Bridgeport’s Internet web site, as required by statute.

 

            5.  Through its City Attorney, the Civil Service Commission, as well as all other agencies in the City of Bridgeport, refuses to honor a request for public records submitted by electronic mail, or as it is commonly referred to, e-mail.  In so doing, the City fails to comply with Section 1-212 of the General Statutes, which requires that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

6.  The Commission concludes that the allegations described in paragraph 5.1, 5.2, 5.3, and 5.4, above, constitute allegations fairly raised in the complaint, as described in paragraph 3.a and 3.b, above.  However, the Commission concludes that the allegation described in paragraph 5.5, above, is broader than the allegation set forth in paragraph 3.c, above.  Specifically, the complaint in this matter, as described in paragraph 3.c, above, alleges that the respondents improperly required the complainant to put a request for a copy of the minutes of the meeting in writing, after she had e-mailed a request for such records.   

 

            7.  On brief, the complainant also alleges that the respondents violated §§1-225(f)[1] and 1-231(a)[2], G.S., with respect to the meeting.  However, such allegations were not fairly raised in the complaint and will not be further addressed herein. 

 

            8.  Section 1-225(a), G.S., provides:

 

[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.   The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken. Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available.  Each such agency shall make, keep and maintain a record of the proceedings of its meetings.

 

9.  Section 1-200(6), G.S., defines “executive session” in relevant part as:

 

…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…(E)  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.  (Emphasis added).

 

            10.  Section 1-210(b)(10), G.S., provides, in relevant part, that nothing in the FOI Act shall be construed to require the disclosure of…communications privileged by the attorney-client relationship.

 

            11.  With regard to the allegation described in paragraph 3.a, above, it is found that the respondent CSC planned to discuss the job performance of Ralph Jacobs, then the personnel director of the city of Bridgeport, at the meeting.  It is further found that, at the start of the meeting, a member of the respondent CSC asked Mr. Jacobs if he wished to have the discussion held in open session, and that Mr. Jacobs responded affirmatively.

 

12.  It is found that the discussions regarding Mr. Jacobs’ job performance were then held in open session, beginning at approximately 12:15 pm, and continuing until approximately 1:55 pm. 

 

13.  It is found that, at approximately 1:55 pm, during the meeting, a member of the respondent CSC called for an executive session “to discuss what’s, you know, taken place.”  It is also found that counsel for Mr. Jacobs objected to the members of the respondent CSC’s stated intention to enter into executive session, because he believed that Mr. Jacob’s job performance was to be further discussed in executive session.  It is found that the respondent CSC entered into executive session, but that the purpose of the executive session was to allow the respondent CSC’s attorney to discuss with his client a written legal memorandum, as permitted pursuant to §§1-200(6) and 1-210(b)(10), G.S., not to discuss Mr. Jacobs’ job performance.

 

14.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 3.a, above.

 

            15.  With regard to the allegation, described in paragraph 3.b, above, it is found that the respondent CSC failed to make the minutes of the meeting, including the votes taken at the meeting, available for public inspection within seven days of such meeting. 

 

16.  The respondent CSC contends that it did not have a website on which it could have posted the minutes, had they been ready.  However, it is found that the respondent CSC, at the time of the meeting, maintained a webpage on the city of Bridgeport’s website.  It is further found that, on such webpage, the respondent CSC posted, among other things, a link to civil service job listings, and a link to its meeting minutes and agendas for 2008. 

 

17.  It is found that the city of Bridgeport, beginning in approximately July of 2009, suffered budget cuts resulting in clerical staff layoffs, which affected the ability of the city, including the respondent CSC, to respond to FOI requests and to post minutes to websites.  Although the respondents offered testimony that the budget cuts also resulted in the “shutdown” over time of certain boards’ and commissions’ webpages maintained on the city of Bridgeport’s website, the respondents offered no specific testimony that the CSC’s website was “shutdown” at, or around, the time of the meeting.

 

18.  Based upon the foregoing, it is found that, at and around the time of the meeting, the respondent CSC had an “available” website on which it could have posted the minutes of the meeting.  Moreover, it is found that nothing in the language of §1-225(a), G.S., relieves a public agency from its obligation to post minutes on its website because of staffing shortages.[3]

 

19.  It is found that, on September 18, 2009, the respondents provided the complainant with a draft transcript of the meeting; however, as of the hearing in this matter, minutes of the meeting were still unavailable to the public. 

 

20.  It is concluded that the respondent CSC violated §1-225(a), G.S., as alleged in paragraph 3.b, above.

 

21.  With respect to the allegation described in paragraph 3.c, above, it is found that, by e-mail dated September 1, 2009, the respondent Dunn informed the complainant that a request she had made by e-mail for a copy of the minutes of the meeting could not be fulfilled, because the minutes were not ready.  It is further found that the respondent Dunn stated “please make your request in writing and copy the City Attorney to expedite your request.”

 

22.  Because, as described in paragraph 19, above, the requested record did not exist at the time of the complainant’s request, and, in view of the fact that the respondents provided the complainant with the draft transcript of the meeting, without requiring her to make a non-electronic request, in writing, for such record, it is concluded that the respondent Dunn did not violate the FOI Act as alleged in paragraph 3.c, above.

 

23.   On brief, the complainant asks the Commission to consider the question of whether an e-mail request for records constitutes a “written request for records within the meaning of §1-212(a), G.S., for all public agencies.  The Commission declines to consider this broad question in the context of this contested case.

 

            24.  With regard to the complainant’s request for remedies, the Commission notes that the complainant did not request a civil penalty against a named member of the respondent CSC.  Accordingly, no member of the CSC received notice of a request for civil penalties.  Based on the facts and circumstances of this case, the Commission declines to conduct a civil penalty hearing in this matter.  

 

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

1.  Forthwith, to the extent that the respondent CSC has not done so, it shall make the minutes of the August 21, 2009 special meeting available for public inspection, in accordance with §1-225(a), G.S., and, shall henceforth, strictly comply with the requirements of §1-225(a), G.S., regarding the filing of meeting minutes.  

 

            2.  In light of the passage of Public Act 10-171, effective October 1, 2010, repealing the requirement that certain public agencies post the minutes of their meetings on their websites, the Commission declines to order the respondent CSC to do so in this matter.  However, the Commission suggests, in the interest of government transparency, and for the sake of convenience to the public, that the respondent CSC post the subject minutes, and continue to post its meeting minutes, on its website, in the future.

 

            3.  The complaint against the respondents David Dunn, Personnel Director; and City of Bridgeport, Personnel Department, is hereby dismissed.

 

            4.  Although not raised in the complaint, the Commission notes that the respondents failed to follow the requirements of §1-225(f), G.S., at the August 21, 2009 meeting, in that they failed to vote by two-thirds majority to enter into executive session, and to state the reasons for such executive session with sufficient specificity.  The respondents are hereby admonished for such failures, and are directed to comply with the requirements of §1-225(f), G.S., in the future.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of September 14, 2010.

 

 

__________________________

Petrea A. Jones

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:

 

Carmen L. Lopez

175 Balmforth Street

Bridgeport, CT 06605

 

David Dunn, Personnel Director,

City of Bridgeport; Personnel Department,

City of Bridgeport; and Civil Service

Commission, City of Bridgeport

c/o Edmund F. Schmidt, Esq.

Assistant City Attorney

City of Bridgeport

999 Broad Street

Bridgeport, CT 06604

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-552FD/paj/9/15/2010