FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL
DECISION
Kenneth Watrous,
Sr.,
Complainant
against Docket #FIC 86-213
Mayor, City
Council and Special City Counsel of the City of Groton,
Respondents December 10 , 1986
The above-captioned matter was heard
as a contested case on September 4, 1986 and continued to October 7, 1986, at
which times the complainant and the respondents appeared and presented
testimony, exhibits and argument on the complaint.
After consideration of the entire
record, the following facts are found:
1. The
respondents are public agencies within the meaning of 1-18a(a), G.S.
2. At
its July 7, 1986 regular meeting the respondent city council convened in
executive session to discuss "pending litigation re: the sewer
outfall." Present at the executive
session, which lasted approximately one hour, were the respondent mayor, the
deputy mayor, members of the respondent council and the respondent special
counsel.
3. By
letter of complaint filed with the Commission on July 29, 1986 the complainant
alleged that executive sessions held by the respondents on June 24, 1986 and
July 7, 1986 were improper because the City of Groton was not a party to any
pending litigation with respect to the sewer outfall.
4. It
is found that the respondent city council's June 24, 1986 meeting was not an
unnoticed or secret meeting within the meaning of 1-21i(b), G.S., that the
complaint was filed more than 30 days after such meeting and that the
Commission, therefore, lacks jurisdiction over the allegations of the complaint
regarding the respondents' June 24, 1986 meeting.
Docket #FIC
86-213 Page Two
5. The
respondents claim that the complainant lacks standing to appeal from the respondents'
actions since the complainant did not attend the July 7, 1986 meeting and
therefore was not denied any right guaranteed by the Freedom of Information
Act.
6. It
is found, however, that 1-21(a), G.S., creates a public right to open
meetings of public agencies and that an alleged violation of such right may be
appealed by any person. Furthermore,
pursuant to 1-21j(d), G.S., the Commission has the power to investigate
all alleged violations of the Freedom of Information Act.
7. It
is concluded that the fact that the complainant was not present at the July 7,
1986 meeting does not deprive him of standing to appeal.
8. It
is found that in the 1970s the State of Connecticut Department of Environmental
Protection [DEP] ordered the Town of Groton to construct a sewer outfall to
direct effluent into the Thames River.
In 1984 a group known as the Mumford Cove Association [MCA] filed an
enforcement action in federal court against the Town of Groton and the
DEP. The City of Groton was granted
permission to participate in the federal suit as an amicus curiae only.
9. In
connection with the sewer outfall construction the Town of Groton applied to
the DEP for permits to lay pipes leading to the Thames River. At the City of Groton's request the City was
named by the DEP as a party to the administrative hearing on the Town's
applications.
10. The
DEP rendered its final decision granting the requested permits on July 18,
1986. On August 12, 1986 the City
served an appeal of such decision on the DEP and the Town of Groton. By motion dated August 19, 1986 the MCA
sought an injunction against the City in connection with its administrative
appeal of the DEP's decision.
11. Also
in August, 1986 the City of Groton filed suit against the Army Corps of
Engineers based upon its alleged failure to comply with federal regulations in
issuing certain permits.
12. The
respondents claim that the July 7, 1986 executive session was properly convened
to discuss whether to appeal the anticipated unfavorable decision by the DEP,
whether the respondent special counsel was authorized to file such an appeal
and the likely outcome of proposed proceedings against the Army Corps of
Engineers.
Docket #FIC
86-213 Page
Three
13. It
is found that the July 7, 1986 executive session was convened, in part, to
discuss strategy with respect to the pending claim before the DEP, to which the
City of Groton was a party. To such
extent, the July 7, 1986 executive session was convened for a proper purpose,
within the meaning of 1-18a(e)(2), G.S.
14. It
is found, however, that on July 7, 1986 there was not pending any claim or
litigation regarding the Army Corps of Engineers to which the City or any of
the respondents was a party, within the meaning of 1-18a(e)(2), G.S.
15. It
is concluded that to the extent that the discussion in the respondents' July 7,
1986 executive session was of proposed action against the Army Corps of
Engineers, such discussion was not properly held in executive session, in
violation of 1-21(a), G.S.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint.
1. The
respondent city council shall cause a copy of this report to be attached to and
made a permanent part of the minutes of its next regular meeting.
Approved by order of the Freedom of
Information Commission at its regular meeting of December 10, 1986.
ÿ
Karen J.
Haggett
Clerk of the
Commission