FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 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 October 15, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by asking him why he wanted certain public records, and by improperly convening in executive session.

 

3.  It is found that the complainant, a member of the respondent Board of Education, made an August 27, 2009 request to the respondent Board’s Finance Director for payroll records of a current Board of Education member, Joan Johansen.

 

4.  It is found that the complainant sought the records to substantiate his belief that Ms. Johansen had been employed by the respondent Board while a member of the Board.

 

5.  It is found that Ms. Johansen had been a paid ticket collector at school athletic events.

 

6.  It is found that the respondents believed the ethics issue to have been resolved when they received an opinion from their counsel that Ms. Johansen had not been employed by the Board of Education when she worked as a ticket collector.  For that reason, the respondent Superintendent disapproved of the complainant’s request for the payroll records.

 

7.  It is found that, on or about September 16, 2009, the respondent Superintendent asked the complainant why he wanted the requested records.  It is found that the complainant did not believe that he had to answer the Superintendent’s questions in order to obtain the records.  However, the Superintendent did not require the complainant to answer the question in order to obtain the records. Rather, the Superintendent was expressing to the complainant that he believed that the records request had caused disharmony within the board, and that he wanted the complainant to withdraw the request.

 

8.  It is found that the complainant received the requested records, which he believed substantiated his ethics complaint.

 

9.  It is found that the respondent Board met on October 5, 2009 and convened in executive session so that the respondent Superintendent could update the respondent Board about the complainant’s ethics complainant against Ms. Johansen.  The import of the Superintendent’s update was that an ethics complaint had been filed, and that the Board would need to cooperate with the Ethics Commission’s investigation by providing information.

 

10.  It is found that the complainant asked if the purpose of the executive session was to discuss him, and was told that it was not.  The complainant did not object to the executive session at that time.

 

11.  It is found, however, that the Superintendent’s report to the Board concerned the complainant’s ethics complaint, that the complainant believed this to be a discussion of him, and that he therefore subsequently objected to the executive session.

 

12.  Section 1-225(a), G.S., provides in relevant part: “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

13.  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;  (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 ….

 

14.  Section 1-200(5), G.S., provides:

 

    “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, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

15.  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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

 

16.  Section 1-212(a)(1), 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.”

 

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

 

18.  The complainant maintains that the respondent Superintendent did not have the authority to ask him why he wanted the requested records.

 

19.  While the Commission understands that the Superintendent intended to defuse tensions between board members, and did not withhold the requested records, the Commission advises him that inquiry into the purpose for which records are sought is strictly prohibited.

 

20.  With respect to the executive session at the October 5, 2009 meeting, the respondents contend that the executive session was permitted as a discussion of strategy with respect to pending claims and litigation.

 

21.  It is found, however, that no actual strategy was discussed at the October 5, 2009 executive session.

 

22.  It is concluded that the respondents violated §1-200(6), G.S.

 

 

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

 

1.  Henceforth the respondent Board shall strictly comply with the requirements of §1-200(6), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 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:

 

John Carbone

7 Silver Birch Lane

Clinton, CT 06413

 

Superintendent of Schools,

Clinton Public Schools; and

Board of Education,

Clinton Public Schools

c/o Kevin M. Roy, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103                                                                                                                                                                                                               

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-620FD/paj/10/13/2010