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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #81 |
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Deputy Corporation Counsel City of Norwalk, Applicant |
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On February 13, 1991, the Commission considered and agreed to respond to a request for an advisory opinion filed by the Deputy Corporation Counsel, City of Norwalk.
On July 30, 1991, the Commission held a hearing on this request for an Advisory opinion at which time the applicant and the State Board of Mediation and Arbitration (hereinafter the "Board") appeared and presented testimony and argument. The State Board of Labor Relations (hereinafter the "SBLR") also appeared at the hearing and requested permission to intervene in these proceedings. The SBLR was granted the status of intervenor pursuant to §1-21j-28 of the Regulations of Connecticut State Agencies and was permitted full participation in the proceedings.
In his request, the applicant notes that the Board holds arbitration hearings on disputes between parties to collective bargaining agreements. These hearings are held by an arbitration panel or single arbitrator of the Board pursuant to its authority under Chapter 560 of the General Statutes, Conn. Gen. Stat. §31-91 et seq., and §31-91 et seq., of the Regulations of Connecticut State Agencies.
The applicant notes that the Board has not promulgated regulations either permitting or prohibiting the tape recording of arbitration hearings. The applicant further states, however, that the Board has a policy prohibiting such recordings. In addition, although §31‑91‑30 of the Regulations of Connecticut State Agencies authorizes parties to a Board arbitration hearing to make arrangements with a private reporting service for a stenographic transcript, at a party's own expense, the Board does not permit the audio tape recording of its hearings for the purpose of creating a record of those proceedings.
The applicant believes the Board's policies prohibiting the tape recording of its arbitration hearings conflict with the Freedom of Information (hereinafter "FOI") Act. He therefore seeks the Commission's "advisory opinion/declaratory ruling" as to whether those policies violate and are superseded by the provisions of the FOI Act.
In relevant part, Conn. Gen. Stat. §1-21(a) provides that "the meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public." In furtherance of this keystone section of the open meetings portion of the FOI Act, Conn. Gen. Stat. §1-21a states:
(a) At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1‑21, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. Any recording, radio, television or photographic equipment may be so located within the meeting room as to permit the recording, broadcasting either by radio, or by television, or by both, or the photographing of the proceedings of such public agency. The photographer or broadcaster and its personnel, or the person recording the proceedings, shall be required to handle the photographing, broadcast or recording as inconspicuously as possible and in such manner as not to disturb the proceedings of the public agency. . . .
(b) Any such public agency may adopt rules governing such recording, photography or the use of such broadcasting equipment for radio and television stations but, in the absence of the adoption of such rules and regulations by such public agency prior to the meeting, such recording, photography or the use of such radio and television equipment shall be permitted as provided in subsection (a).
On their face, the Board's policies prohibiting the tape recording of its arbitration hearings violate the recording provisions of §1‑21a. However, it remains to be determined whether the Board's arbitration hearings are meetings of a public agency which are open to the public pursuant to §1‑21.
There is no doubt that the Board is a public agency within the meaning of Conn. Gen. Stat. §1-18a(a), as it is an executive or administrative board of the state. Nor is there any doubt that the Board's arbitration hearings constitute meetings of a public agency under Conn. Gen. Stat. §1-18a(b), since hearings of public agencies, by definition, are considered meetings. Also, since arbitration hearings are neither strategy nor negotiation sessions, they are not excepted from the definition of "meeting" under §1‑18a(b). Thus, if the Board's arbitration hearings are not to be held subject to the FOI Act's open meeting requirements, it must be by operation of a statute external to the FOI Act.
In its final decision in contested case docket #FIC 83‑177, New Haven Police Local 530 et al. v. Connecticut Board of Mediation and Arbitration et al., the Commission ruled that a specific case file of the Board was exempt from disclosure under the FOI Act by operation of Conn. Gen. Stat. §31‑100. The relevant portion of that statute, part of Chapter 560 dealing with the establishment, empowering and jurisdiction of the Board, reads:
Said board [The Board] shall, as provided in section 4‑60, make a report to the governor and shall include therein statements of such facts and explanations as will disclose the actual doings of the board and such suggestions as to legislation as seem to it conducive to harmony in the relations between employers and employees. The board shall hold confidential all information submitted to it by any party, to a labor dispute and shall not reveal such information unless specifically authorized to do so by such party.
The Commission, however, has been unable to find any case that addresses the applicability of §31‑100 with respect to the Board's arbitration hearings.
There is nothing in Chapter 560, and the Commission is unaware of any other statute, which explicitly provides that the Board's arbitration hearings are not to be open to the public or subject to the provisions of §1‑21a. Indeed, the only legal authority expressly dealing with this issue is §31‑91‑34(a) of the Regulations of Connecticut State Agencies, which states:
Persons having a direct interest in the arbitration proceedings are entitled to attend the hearings. It shall be discretionary with the chairman and subject to the agreement of all parties whether any other persons may attend.
This regulation makes no reference either to any section of the FOI Act, or to any specific statute, that permits the Board and the parties to exclude members of the public from Board arbitration hearings. Indeed, as noted above the Commission cannot find any statute that directly excepts such hearings from the FOI Act's coverage. What remains unclear then is whether this regulation, §31‑91‑34(a), has a proper statutory predicate. For "[a]n administrative regulation can have no authority beyond the statute that it purports to implement;" Harper v. Tax Commissioner, 199 Conn. 133, 142 (1986); and a regulation cannot overrule a statute; Dukes v. Durante, 192 Conn. 207, 226 (1984).
The Board and the SBLR contend that Conn. Gen. Stat. §31‑100 is the statutory predicate authorizing §31‑91‑34(a). If this statute provides such authority, it does not do so specifically and directly. "Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed." Board of Trustees v. FOI Commission, 181 Conn. 544, 550 (1980). In this instance, there is no pertinent legislative history surrounding §31‑100 to aid in this process. Nor does the legislative history cited by the SBLR surrounding the enactment of the FOI Act in 1975 speak to Board arbitration hearings or the specific question presented by the applicant.
It is the Commission's opinion that even when §31‑100 is given a broad interpretation, its language simply does not support the categorical closing of the Board's arbitration hearings to the public. The statute merely says the Board shall not reveal information submitted to it by any party unless that party authorizes disclosure. In fact, the regulation, §31‑91‑34(a), goes well beyond the limitations of its supposedly predicating statute. The regulation requires the approval of the chairman and all parties before a person not having a direct interest in an arbitration can attend the hearing. The statute, on the other hand, requires the disclosure of otherwise confidential information as long as the submitting party alone authorizes it.
Also, although §31‑100 provides for the confidentiality of certain information, it makes little sense in the context of Board arbitration hearings (as opposed to mediation sessions) in which both sides hear and see the information presented by the other side. Moreover, as noted above, the statute does not say that all the Board's arbitration hearings are to be closed to the public. To the contrary, the judicially approved definition of the word "hearing" refers to a "proceeding of relative formality….generally public, with definite issues of fact and law to be tried…." Herman v. Division of Special Revenue, 193 Conn. 379, 382 (1984); Leabo v. Leninski, 9 Conn. App. 299, 302 (1986). (Emphasis.added). And as the Supreme Court wrote in Board of Police Commissioners v. FOI Commission, 192 Conn. 183, 190 (1984), "§1‑21 must be construed to mandate that the 'hearing' portion of an administrative proceeding, where evidence and arguments are presented, be open to the public."
Consequently, the Commission believes that §31‑100 neither provides a legally sufficient statutory predicate for §31-91-34 nor does it, alone or together with §31-91-34, exempt the Board's arbitration hearings from the FOI Act's open meeting requirements. It is therefore the Commission's opinion that the Board's policies prohibiting the tape recording of its arbitration hearings violate, and are superseded by, the provisions of the FOI Act.
This is not to say that every portion of every Board arbitration proceeding is open to the public. The Board may certainly convene in executive session in those instances permitted under Conn. Gen. Stat. §1-18a(e), subject to the limitations set forth in Conn. Gen. Stat. §1-21g. And the Board may close to the public those portions of its proceedings in which information would be revealed that is confidential under the terms of Conn. Gen. Stat. §31-100 or under any other state statute permitting confidentiality in its proceedings.
It should also be noted that in responding to this request for an advisory opinion, the Commission need not decide whether a tape recording of an arbitration hearing, kept by the Board, is subject to public disclosure under Conn. Gen. Stat. §1‑19(a). Nor does the Commission need to address the applicability of statutory exemptions, such as those found in Conn. Gen. Stat. §§1‑19(b)(9), 1‑19(b)(10) and 31‑100, to the public disclosure of such tapes. Those determinations are simply not at issue here where a party to an arbitration proceeding is merely seeking to make and obtain an audio tape record of the very hearing in which that party is participating. Indeed, the Board's own regulation, §31‑91‑30, permitting a party to arrange for a private reporting service to record and make a transcript of an arbitration hearing, belies the SBLR's contention in these circumstances.
Finally, after reviewing all the evidence and arguments offered by the Board and the SBLR, the Commission can ascertain no rational basis for the Board's contradictory and anachronistic policies prohibiting parties from tape recording an arbitration hearing for which they can have a private reporting service provide them with a transcript. As described above, no state law requires such policies. On the other hand, permitting the parties to tape record their hearings, instead of hiring a private service to do it, would serve to keep down costs, one of the principal purposes of arbitration as a means of dispute resolution. This benefit is of even greater importance here where a financially pressed municipality is involved. Thus, the Commission believes that the conclusions stated in this opinion are not only warranted under the applicable law, but are supported by common sense and good public policy.
By Order of the Freedom of
Information Commission
________________________
Kenneth E. Grube, Chairman
Dated: ___________________
Ordered:_________________
Debra L.
Rembowski,
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 ADVISORY OPINION ARE:
M. Jeffry Spahr
Deputy Corporation Counsel
City of Norwalk
P.O. Box 798
Norwalk, CT 0685‑0798
Connecticut State Board of Mediation and Arbitration c/o Assistant Attorney General Laurie Adler 55 Elm Street Hartford, CT 06106
Connecticut State Board of Labor Relations c/o E. Stephen Briggs General Counsel State Board of Labor Relations 200 Folly Brook Boulevard Wethersfield, CT 06109
__________________________
Debra L. Rembowski
Acting Clerk of the Commission