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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #40 |
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Chairman, Washington Planning Commission, Applicant |
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On April 9, 1980, the Commission considered and agreed to respond to the request for an advisory opinion filed by the chairman of the Washington Planning Commission.
In his request, the applicant describes a hypothetical situation similar in kind to one faced by town planning commissions across the state. The situation contemplates an application for approval of a large, complex subdivision proposed for difficult terrain. In support of the subdivision, the proponent submits to the planning commission the following documents: site and plot plans; plans showing grades of streets and locations of proposed buildings, wells and septic systems; a soil report; and a feasibility study showing the results of percolation and deep pit tests.
In essence, the applicant seeks the Commission's opinion as to whether it would constitute a violation of the Freedom of Information (FOI) Act for a planning commission to hold a meeting without public notice, without minutes or a record of proceedings, and at which the public and press are excluded, to review, study and discuss the above-mentioned documents, but not to take any final action.
For purposes of the FOI Act, Conn. Gen. Stat. §1‑18a(b), in relevant part, defines a "meeting" as
... any hearing or other proceeding of a public agency, 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.
(Emphasis added). A town planning commission is a public agency. See Conn. Gen. Stat. §1-18a(a). Thus, it is the Commission's opinion that the "work session" envisioned here is not an exception to the definition of "meeting" subject to the requirements of the FOI Act. It is, in fact, a meeting of a public agency to discuss a matter over which it has supervision, control, jurisdiction and, presumably, advisory power.
Conn. Gen. Stat. §1-21 structures all meetings of public agencies into three categories exclusively: regular, special and emergency. There is no additional category for the equivalent of "work sessions." Regular and special meetings require advance public notice. All three types of meetings require minutes or a record of proceedings. See also Conn. Gen. Stat. §1-19(a). And all three are required to be open to the public, including the media, except for those portions held properly in executive session for one or more of the purposes set forth in Conn. Gen. Stat. §1-18a(e). It is the Commission's opinion that the kind of meeting to which the applicant refers in his question is not exempt from any of these requirements.
Nor does the Commission believe that a planning commission may properly convene in executive session, and thereby exclude the public, merely because it desires to review, study and discuss the records described above without public or media scrutiny. None of the five purposes for an executive session, set forth in Conn. Gen. Stat. §l-18a(e) expresses a legislative intent to close such meetings from the public. Even the so-called "pending claims and litigation" purpose; Conn. Gen. Stat. §1-18a(e)(2); is limited to "strategy and negotiations with respect to pending claims and litigation to which the public agency or a member thereof ... is a party...." (Emphasis added). In the hypothetical situation presented, the planning commission is not a party to a pending claim. It is the decision‑maker ruling on an application for a subdivision. And the proposed session is not limited to strategy and negotiations.
Consequently, for each of the foregoing reasons, it is the Commission's opinion that the applicant's stated inquiry be answered in the negative. But the Commission does not wish to base its opinion solely on the express language of the FOI Act itself. The Commission believes that it is important to an understanding of this issue that the legislative intent underlying the act's open meetings provisions be set forth clearly.
In explaining the bill that has become known as the FOI Act, Representative Burke, the House proponent of the bill, said:
Secrecy has been the most convenient means of keeping power out of the hands of the people. If citizens are to understand and have confidence in governmental decisions, then they must be allowed to observe the processes by which these decisions are made.
18 H.R. Proc., Pt. 8, 1975 Sess., p. 3910. This conclusion was the result of extensive hearings and testimony before a committee of the General Assembly. See Conn. Gen. Assembly, Joint Committee on Government Administration and Policy, 1975 Sess., pp. 302-379. In its entirety, this testimony can be characterized as attesting to the lack of confidence and understanding by the people of Connecticut in their governmental agencies because many of their decisions are arrived at in secret.
In the most elemental dynamics of a representative democracy, a lack of public confidence and understanding is potentially fatal to effective government. This principle was recognized by Thomas Hooker in his sermon that led to the adoption in 1638 of the Fundamental Orders of Connecticut, the first written constitution, and states: "The foundation of authority is laid in the free consent of the people…." With this concept in mind, what was to be the FOI Act's preamble was read into the record of both houses of the General Assembly when that act was passed in 1975. It bears repeating in the context of this opinion.
The legislature finds and declares that secrecy in government is inherently inconsistent with a true democracy, that the people have a right to be fully informed of the action taken by public agencies in order that they may retain control over the instruments they have created; that the people do not yield their sovereignty to the agencies which serve them; that the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of the law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the record of all public agencies be open to the public except in those instances where a superior public interest requires confidentiality.
18 H.R. Proc., Pt. 8, 1975 Sess., p. 3911; 18 S. Proc., Pt. 5, 1975 Sess., pp. 2323‑24.
Thus the Commission believes that it is essential that all public agencies realize that the FOI Act was not merely enacted in the "post‑Watergate" era to remedy certain governmental abuses under the cloak of secrecy. It was enacted to remedy a loss of confidence and understanding by the people in their public institutions and officials. It was thought more important to restore these qualities by opening the processes of government to public scrutiny than to risk a further erosion in the foundation of that government by continuing the more comfortable practice of operating behind closed doors.
Furthermore, fears that agencies could not perform effectively in a "fish bowl" environment have largely proved superficial. As Senator Rome said on the floor of the Senate in speaking in favor of the bill that became the FOI Act.
I think that there are those who have been watching the legislative procedures for the past few years and recognize that two years ago the General Assembly initiated much of what is incorporated into this bill as their [sic] procedures and surprise to so very many in the state, it didn't close‑up government and make many go underground, it didn't make people less receptive to talking about their ideas; it made them more understanding of the need to publicly explain those ideas and, as a matter of fact, it allowed them and really sustained them in doing better homework. I think it has worked very, very well here.
18 S. Proc., Pt. 5, 1975 Sess., pp. 2329‑30.
Even in a pragmatic sense, agencies need not really fear a loss of effectiveness because their functions of review, study and discussion might be misinterpreted, or treated as final. The public, including the media, is certainly intelligent and insightful enough to judge for itself what agencies are doing, when they do it openly and candidly. In the rare instance where there is a serious misunderstanding, public agencies generally have the means to present their views or to correct any errors of fact. Likewise, careful prefatory remarks, like explaining the nature of the proceedings, or emphasizing the preliminary or "devil's advocate" aspect of one's thinking, will usually prevent any misinterpretation before it occurs.
In sum, it is the Commission's opinion that meetings of public agencies limited to review, study and discussion must still be held in conformity with the open meetings provisions of the FOI Act. This result is not only mandated by express legislative language and intent, it is well‑considered public policy. By following the letter and spirit of this law, the Commission believes that public agencies will, in fact, become more effective because the people whom such agencies serve will have greater confidence and understanding in their ultimate good judgment.
By Order of the Freedom of
Information Commission
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Judith A. Lahey, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Leslie Ann McGuire, Clerk of the Commission