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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #23 |
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Eric A. Plaut, M.D. Commissioner Department of Mental
Health, Applicant |
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December 21, 1976 |
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By the order of the Commission at its meeting of December 8, 1976, it agreed to furnish an advisory opinion requested under Sec. 4-176, G. S., by the Commissioner of Mental Health.
By his inquiry he furnished the following facts:
"The Commissioner's Committee to Study Commitment Statutes has recently been formed for the purpose of evaluating and reporting back to the Commissioner of Mental Health on the law concerning commitment of persons to mental health facilities in Connecticut. This is an advisory committee made up of private citizens, state legislators, mental health professionals, and attorneys. The committee's sole purpose is to provide information for the Commissioner and to make recommendations to him as to any possible changes in the present law. The committee has no independent power; any decision the Commissioner will make is to be made on his own with no accountability to the committee. The committee functions as an extension of the Commissioner's staff in that it makes written and oral reports to him yet there is no duty on the part of the Commissioner to accept and/or act on the committee's recommendations. The committee has no official standing, no statutory basis for existence, and no for mal responsibilities. Meetings are held on an informal basis priorities permit."
The Commissioner then asked for guidance as to the manner in which to provide access, as required by P.A. 75-342.
Contrary to the Commissioner's impression, the Committee is subject to the provisions of the Freedom of Information Act in that it is a part of a public agency, as defined by Sec. l(a) of the Act. The Attorney General analyzed this problem in an opinion dated October 16, 1975, and addressed to the Chancellor of the Commission for Higher Education:
"In practice a committee can be a single governmental employee who is preparing a report to be submitted to a public agency or who is performing some ministerial act as the instrumentality is convening to inquire, analyze, study, or suggest various possible courses of action to itself as a public agency. Both cases and all of the possibilities that lie between them assume that such a committee was duly created within the scope of the powers of the public agency and that it functions through that agency. So the committee is, in fact, a part of a public agency within the meaning of P.A. 75-342.
"Because the committee is a part of a public agency, its records are defined to be included within those records of the agency that are public records to the extent that any other agency records are subject to access under Sec. 1-19, G. S., as amended by Sec. 2 of P.A. 75-342.
"Similarly the analysis of a question whether or not a meeting of a committee is governed by P.A. 75-342 turns on the definition of a meeting set forth in Sec. l(b). The Act says that a meeting is any hearing or other proceeding of a public agency and any convening or assembly of a quorum of a multi-member public agency to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.
"In this context the nature, content and effect of the performance of the committee's functions determines the application of the Act to the committee's meetings. If a meeting is to include no members of the public agency, if its actions are entirely ministerial, if it controls none of the discretionary exercise of governmental power delegated to the agency, these circumstances would weigh in favor of concluding that the meeting was not, in fact, a meeting of the public agency. On the other hand, if the agency members were present and if the committee was discussing or acting upon matters within the agency's supervision, control, jurisdiction or advisory power in such a way as to exercise in some manner the powers of the agency, the committee meeting would be more likely to be found to be a 'meeting' within Sec. l(b).
"From all of the foregoing comments it should be clear that the facts and the application of P.A. 75-342 will vary from case to case. It is the role of the Freedom of Information Commission to consider such facts on the occasion of a complaint (Sec. 14, P.A. 75-342) or a request for a declaratory ruling (Sec. 4-176, G. S.)."
Within the scope of the facts you have submitted the Commission concludes that no part of the authority of the public agency that you constitute can be exercised by the Committee you have described. This leads to the further conclusion that, although the records of this Committee are a part of the records of a public agency, its meetings are not the meetings of a public agency.
The Commission's conclusion is based on the circumstance that no part o the sovereign power delegated to the Commissioner of Mental Health has been delegated to the Committee. The State ex rel. Stage v. Mackie, 82 Conn. 398, 402-403, 1909. It follows that at no convening of the Committee can the members of the Committee act on any matter of which the Commissioner of mental Health has supervision, control, jurisdiction or advisory power, as described in Sec. l(b) of P. A. 75-342.
While it may be advisable for the Commissioner to direct the Committee to conduct open meetings to keep the public informed of its activities the Committee is not required to comply with Sec. 6 in providing access to the Committee's meetings.
By Order of the Freedom of
Information Commission
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Herbert Brucker, Chairman of
of the Freedom of Information
Commission
Date _19 January, 1977__
Ordered_________________
Louis J. Tapogna, Clerk