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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #46 |
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The Lakeville Journal, Inc., Applicant |
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On May 27, 1981, the Commission considered and agreed to respond to the request for an advisory opinion filed on behalf of the Lakeville Journal, Inc. by Robert H. Estabrook, its editor and publisher.
In its request, the applicant seeks the Commission's opinion as to whether §22‑7‑27 of the Regulations of Connecticut State Agencies conflicts with the Freedom of Information Act. For the reasons more fully set forth below, it is the Commission's opinion that a portion of this regulation does substantially conflict with certain provisions of the Freedom of Information Act.
§ 22‑7‑27 of the Regulations of Connecticut State Agencies was promulgated by the Connecticut Department of Agriculture and became effective September 6, 1973. It is part of a regulatory article governing procedures in contested cases before the Department of Agriculture. See § 22‑7‑21 et. seq. of the Regulations of Connecticut State Agencies. Under the Connecticut Uniform Administrative Procedures Act, Chapter 54 of the Connecticut General Statutes, state agencies must promulgate rules of practice for all of their formal and informal proceedings; Conn. Gen. Stat. § 4-167(a); including contested cases as defined in Conn. Gen. Stat. § 4-166(2).
In essence, the regulation in question establishes procedures for an informal conference concerning alleged violations of any statutes administered by the Department of Agriculture. As part of this regulatory scheme, § 22‑7‑27(d) provides:
(d) Informal conferences will not be publicized and press coverage of such proceedings is prohibited. This is to preclude possible adverse inferences against a party innocent of any wrongdoing.
No other portion of § 22‑7‑27 appears to relate to matters within the purview of the Freedom of Information Act.
The commissioner of Agriculture, the Department of Agriculture, and the officers thereof, are public agencies as that term is defined in Conn. Gen. Stat. § 1‑18a(a). Conn. Gen. Stat. § 1‑18(d), in relevant part, defines "meeting" for purposes of the Freedom of
Information Act as "any hearing or other proceeding of a public agency . . . to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power." Thus, it is the Commission's opinion that the informal conference described in § 22‑7‑27 of the Regulations of Connecticut State Agencies constitutes a meeting under Conn. Gen. Stat. § 1‑18a(d).
Conn. Gen. Stat. § 1‑21 states that "[t]he meetings of all public agencies, except executive sessions as defined in subsection (e) of sections 1-18a, shall be open to the public." This statutory provision is mandatory and binding upon all public agencies. Furthermore, it is the Commission's opinion that where a procedural regulation promulgated pursuant to Conn. Gen. Stat. § 4-167(a) is inconsistent with the legislative intent expressed in a state statute, the regulation is without effect. 1 Am. Jur. 2d, Admin. Law § 133; 2 Am. Jur. 2d, Admin. Law § 292. Consequently, to the extent that § 22-7-27 is inconsistent with Conn. Gen. Stat. § 1-21, the former may not supersede the mandate of the latter.
Conn. Gen. Stat. § 1-21
contains no limitation on media access to the meetings of
public agencies. As a result, it is the Commission's opinion that the
prohibition in
§ 22‑7‑27(d) against press coverage
conflicts with the statutory requirements of § 1‑21.
Likewise, in so far as the prohibition against publicity in § 22‑7‑27(d)
bars the public notice of meetings that is required by § 1‑21, it also conflicts with
the statute. This, of course, is not to imply that a public agency is legally
obliged to publicize all of its meetings beyond the minimum notice prescribed
by § 1‑21. In providing notice
to the public though, all agencies should be mindful of the legislative intent
embodied in the Freedom of Information Act.
A portion of that intent, as expressed in both houses of the General
Assembly, bears repeating:
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 this law that actions taken by public agencies be taken openly and their deliberations be conducted openly ....
18 H.R. Proc., Pt. 8, 1975 Sess., p. 3911; 18 S. Proc., Pt. 5, 1975 Sess., PP. 2323-24.
The Commission notes that the
Freedom of Information Act in its present form, including §1‑21,
became effective on October
1, 1975. P.A. 75-342. It therefore
post-dates the effective date of § 22‑7‑27
by some two years.
When promulgated,
§ 22-7-27(d) was probably not in conflict
with the antecedent of § 1-21, or any other state
statute. The subsequent enactment of
the Freedom of Information Act, however, has changed this relationship. It is the Commission's opinion that § 22‑7‑27(d) now does not comport with either
the letter of § 1‑21, or
the important public policy underlying that statute of general applicability.
Finally, the Commission wants to make clear that this advisory opinion does not relate to any particular fact situation. It is merely intended to advise the applicant and other interested persons of the Commission's interpretation of the Freedom of Information Act as it applies to the specific regulation in question. Consequently, this opinion should not be construed beyond its stated intent.
Approved by order of the Freedom of Information Commission at its regular meeting of September 23, 1981.
By Order of the Freedom of
Information Commission
________________________
Judith A. Lahey, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Wendy
Rae Briggs,
Clerk of the Commission