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FREEDOM OF INFORMATION COMMISSION |
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Advisory Opinion #25 |
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Town of East Haddam, Applicant |
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March 9, 1977 |
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The Commission furnished its Advisory Opinion #24, pursuant to §4-176, G.S., on January 19, 1977. That opinion was granted at the request of the Town of East Haddam, acting through its First Selectman. Subsequently, on February 23, 1977, the Commission voted to review and clarify that advisory opinion.
Specifically, the Commission has reconsidered the underlying question raised in Advisory Opinion #24--i.e., whether the record of votes provision of §1-21, G.S., applies to an annual or special town meeting. For the reasons hereinafter stated, the Commission finds that the answer to this question is dispositive of all issues with respect to Advisory Opinion #24, and should accordingly be set forth herein.
§1-21, G.S., in pertinent part, reads:
"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, excluding any Saturday, Sunday or legal holiday, and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection at all reasonable times."
No exception to the above requirements is provided by the Freedom of Information Act, P.A. 75-342, as amended and codified within Chapter 3, G.S. Consequently, to the extent that any vote by the members of a public agency is governed by that Act, such public agency must comply with the aforesaid provision.
It therefore remains to consider whether a town meeting is a public agency within the meaning of the Freedom of Information Act for the purposes of R-21, G.S. This is not a simple question and requires a complex analysis.
Chapter 90, G.S., governs town meetings. It sets forth
certain procedures for the warning and conduct of such meetings, as well as the
qualification for participating therein. To the extent that Chapter 90
conflicts with the Freedom of Information Act, it is resolved in favor of
compliance with Chapter 90. Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 404-405 (1972). The fact that §7-7, G.S., permits the use of voting machines to register votes upon issues at a town meeting is indicative of
the legislative policy that such votes need not be recorded pursuant to §1-21, G.S.
The General Assembly, in enacting the Freedom of Information Act, must be
presumed to have been cognizant of the provisions of §7-7. The only plausible
explanation for its not amending either statute to resolve
this apparent conflict is that it did not deem the votes at a town meeting to
be an action of a public agency, within the meaning of that term in §1-18a (a),
G.S. Therefore, the votes of each participating
member of a town meeting would not be subject to §1-21, G.S.
This interpretation is reinforced by the language of §1-18a (a) itself. That section defines "public agency" or "agency"; and refers to individuals or organizations that represent the public in matters of government. Even in ordinary usage, "agency" implies one acting on behalf of another. See §1-1, G.S.
One of the basic functions of the Freedom of Information Act is to insure to members of the public rights of access to meetings of public agencies that are ordinarily conducted by the representatives of the public. Chapter 90, G.S., requires town meeting warnings that extend beyond the requirements of the Freedom of Information Act. Chapter 90 also provides more than a right to attend town meetings; it provides the greater right to participate in the deliberations then and there going forward. These special circumstances operate to guarantee a level of public access that should take precedence, where applicable, over the requirements of the Freedom of Information Act.
To hold that a town meeting is a meeting of a public agency for the purposes of §1-21, G.S., would both distort the meaning of that term, as defined by 1-18a (a), and contravene the legislative intent in enacting P.A. 75-342.
The Commission therefore concludes that the record of votes provision of §1-21, G.S. does not apply to an annual or special town meeting.
The Commission cautions the Applicant and others relying on its advisory opinion that the foregoing and Advisory Opinion #24 are limited to the specific facts and issues presented by the Applicant and treated in these two opinions. No consideration has been given to other related questions affecting town meetings. For example, nothing herein shall be construed as stating any opinion of the Commission as to whether a moderator or committee of a town meeting is a public agency for the purposes of the Freedom of Information Act. Likewise, no opinion is stated as to whether a town meeting is a meeting of a public agency to which any other public access provisions of the Freedom of Information Act apply. These, and other questions, are more appropriately raised in the context of a proper case under §1-21i or §4-176, G.S.
By Order of the Freedom of
Information Commission
________________________
Herbert Brucker, Chairman of
of the Freedom of Information
Commission
Date __March 16, 1977__
Ordered_________________
Louis J. Tapogna, Clerk