FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 29, 2010, at which time the complainant appeared and presented testimony, exhibits and argument on the complaint.  Counsel of record for the respondents notified the Commission by telephone on the morning of the hearing that no one would be appearing on behalf of the respondents, without further explanation.  No continuance was requested, and the hearing therefore was conducted as scheduled without the respondents present in person or by counsel, by their own choice.

 

            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 March 11, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by holding their March 4, 2010 meeting in a building that was not open to the public; by failing to give notice of that meeting on their website; by failing to make available an agenda of that meeting on their website; and by failing to make public records pertaining to that meeting available for inspection. The complainant requested that the respondents be ordered to provide the documents requested free of charge and to attend another[1] educational workshop by Commission staff; and also that civil penalties be levied against the individually named respondents.

 

3.  It is found that the respondents did not post a notice of their March 4 meeting on their web site. [2]

 

4.  It is found that the respondents held a regular monthly meeting in their firehouse at approximately 7:30 p.m. on March 4, 2010.

 

5.  It is further found that all of the doors to the firehouse were locked at 7:35 on that evening.

 

6.  It is found that when the complainant attempted to attend that meeting, he was unable to enter through any of the doors of the firehouse where the meeting was taking place, but asked an Emergency Medical Technician who happened to be leaving the building to let him in.

 

7.  It is found that the EMT told the complainant that meetings were for members only, and questioned the complainant for approximately five minutes to establish whether he was a member of, or a friend of a member of, the respondent Fire Company. The complainant was ultimately permitted to follow the EMT upstairs to the meeting room, where he was directed to wait outside while the EMT could talk to “someone responsible.”

 

8.  It is found that the EMT spoke to Ledyard Fire Company Deputy Chief Jeffrey Gaccione, and told Gaccione that someone was trying to get into the meeting.

 

9.  It is found that Gaccione directed Godoy to wait outside while Gaccione spoke to individuals inside the meeting room.  When Godoy turned to leave, Gaccione ultimately called Godoy into the meeting, where Godoy sat quietly at the back of the room.

 

10.  It is found that, during the meeting, Godoy sent an email to Gaccione requesting an opportunity to inspect the Ledyard Fire Company by-laws, constitution, and all documents related to the operations and meetings of the respondents.

 

11.  It is found that Gaccione did not then, or thereafter, respond to Godoy’s email, except as noted in paragraph 12, below.

 

12.  It is found that, at the adjournment of the meeting, Godoy approached the table where the Ledyard Fire Company and Board members sat, and asked for the identity of the chairperson, who identified herself as the respondent Diana Mann.  When Godoy asked to inspect a copy of the agenda for the meeting, he was interrupted by Gaccione, who said that the agenda was locked in the fire chief’s office, and could not be inspected then, but that it was available at the town hall and on the respondent’s web site.  This information was confirmed by Mann.

 

13.  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 ….

 

14.  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 ….

      …

 

      (d) Notice of each special meeting of every public agency … be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 … in the office of the clerk of such subdivision for any public agency of a political subdivision of the ….

 

      (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.

 

            15.  It is concluded that the respondents did not violate §1-225(d), G.S., by holding a regular meeting without posting the agenda for that meeting on their web site.

 

16. It is concluded that the respondents violated §1-225(a), G.S., by holding a meeting in a building which, because the doors were locked, was not open to the public.

 

17.  It is concluded that the respondents violated §1-225(e), G.S., by requiring the complainant to furnish information about himself as a condition precedent to his attendance at the meeting.

 

18.  It is concluded that the respondents did not violate the FOI Act by failing to make available the requested agenda during the meeting, when it was locked in the Fire Chief’s office, and instead informing the complainant that it was available for inspection at the Ledyard town hall.  The Commission bases this conclusion on the unavailability of the requested records at the time of the meeting, but offers no opinion as to whether the meeting time constituted regular office or business hours of the respondents.

 

19.  However, it is also concluded that the respondent Gaccione violated §1-210(a), G.S., by failing to respond to the complainant’s request to inspect the fire company’s by-laws, constitution, and all documents related to the operations and meetings of the respondents.

 

20.  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.

 

21.  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). 

 

22.  It is found that the respondent Gaccione is the official directly responsible for the denial of the complainant’s right to attend the respondents’ March 4 meeting without furnishing information about himself.

 

23.  It is found that the respondents Mann, by virtue of her authority as chair, and Gaccione, by virtue of his authority as Deputy Fire Chief, were the officials directly responsible for denying the complainant access to a meeting in a building that was open to the public.

 

24.  It is found that the respondents Gaccione and Mann were both given an opportunity to be heard, either in person or through counsel.

 

25.  It is found that the respondents Gaccione and Mann provided no reasonable grounds for the violations described in paragraphs 22-24, above.

 

26.  The Commission takes administrative notice of its record and final decision in Docket #FIC 2009-339, Godoy v. Ledyard Fire Board et al., in which members of the Ledyard Fire Board and Fire Company were also found to have violated the FOI Act by conducting a meeting in a building from which the public was locked out and by requiring the complainant to furnish information about himself as a condition to attending the meeting.

 

27.  While the Commission’s decision in Docket #FIC 2009-339 was not issued until May 12, 2010, after the filing of the complaint in this matter, the Commission notes that the respondents offered, and the Commission found, no reasonable grounds for the violations in that earlier case. Nor did the respondents offer any grounds for the violations found in this case.

 

28.  It is therefore found that, although the Commission did not issue its decision in Docket #FIC 2009-339 until after the filing of the complaint in this matter, the respondents Mann and Gaccione nonetheless violated the FOI Act without reasonable grounds.  Indeed, the respondents declined even to attend the Commission’s evidentiary hearing in this matter in order to provide some justification for their actions.

 

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

 

30.  While the Commission believes that an increased civil penalty over the $100 ordered in Docket #FIC 2009-339 may be warranted, it declines in its discretion to do so, since that earlier penalty was not ordered to be paid until after the filing of the complaint in this matter.

 

31.  With respect to the complainant’s request that the respondents be required to attend an additional educational workshop, the Commission in its discretion declines to order such attendance, on the grounds that compelled attendance is not likely to produce compliance with FOI Act requirements. Nonetheless, the Commission strongly urges the respondents to voluntarily arrange for such a workshop, as they continue to demonstrate fundamental misunderstandings of the open meetings requirements of the FOI Act.  Failure to arrange for such a workshop may be a factor in the Commission’s decisions in future cases, if any.

 

 

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

 

            1.  The respondent Mann 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.  The respondent Gaccione 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.

 

3.  Henceforth the respondents shall strictly comply with the open meetings requirements of §1-225(a), G.S.  The respondents shall pay particular attention to the requirement that their meeting be held in a publicly accessible building, and that individuals not be required to furnish information about themselves as a condition to attending a meeting. 

 

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 February 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Joao Godoy

P.O. Box 138

Avon, CT  06001

 

Dianna Mann, Chairperson, Ledyard Fire Board; Ledyard Fire Board;

Jeffrey Gaccione, Deputy Chief, Ledyard Fire Company; and
Ledyard Fire Company

c/o Frank A. Manfredi, Esq.

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

223 West Town Street

Norwich, CT  06360

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-174/FD/cac/2/28/2011