FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
John P. Reilly and The Hour,
Complainants
against Docket
#FIC 95-222
Norwalk Fair Rent Commission,
Respondent June 12, 1996
The above-captioned matter was heard as a contested
case on January 30, 1996, at which time the complainants and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1. The
respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter
dated June 20 and filed June 22, 1995, supplemented by letter dated July 6 and
filed July 11, 1995, the complainants appealed to the Commission, alleging that
the respondent violated the Freedom of Information ("FOI") Act by
improperly convening in executive session on January 1, February 4, February
15, March 15, May 16, June 14 and June 21, 1995.
3. It is
found that the Commission has jurisdiction only with respect to the allegations
concerning the June 14 and June 21, 1995 meetings. Consequently, the complaint is dismissed with respect to the
complained of January - May 1995 meeting dates.
4. It is
found that on June 14 and June 21, 1995, the respondent convened in executive
session to deliberate on a matter pending before it, Dreamy Hollow Cooperative
Apartments, Inc. v. Dreamy Hollow Apartments Co. (hereinafter "case
#1158"), which had previously been heard on four separate hearing dates in
May 1995.
5. The
respondent claims that the executive sessions were appropriate under
1-18a(e)(2), G.S., because the respondent is defending a separate legal
action pending in Stamford Superior Court, challenging its jurisdiction to hear
case #1158.
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2
6. Section
1-21(a), G.S., provides, in pertinent part:
"The meetings of all public agencies, except
executive sessions as defined in subsection (e) of section 1-18a, shall be open
to the public."
7. Section
1-18a(e)(2), G.S., permits an executive session to discuss:
"strategy and negotiations with respect to
pending claims or pending litigation to which the public agency or a member
thereof, because of his conduct as a member of such agency, is a party until
such litigation or claim has been finally adjudicated or otherwise
settled." [Emphasis added.]
8. It is
found that the respondent is a party to the pending litigation referenced in
paragraph 5, above, Dreamy Hollow Apartments Co. v. Fair Rent Commission of the
City of Norwalk, CV 95 0144471 S, and that in April 1995, a request for
preliminary injuction, seeking to prevent the respondent from hearing case
#1158, was denied.
9. It is
found, however, that the respondent did not convene in executive session to
discuss its strategy as a party to the pending litigation described in
paragraphs 5 and 8, above, but rather to deliberate on case #1158 as an
adjudicator.
10. It is
concluded that the respondent's executive sessions on June 14 and 21, 1995,
were not authorized by 1-18a(e)(2) and 1-21(a), G.S.
11. The
respondent also claims that the executive sessions were properly convened to
formulate a preliminary draft of its decision in case #1158.
12. Section
1-18a(e)(5), G.S., permits an executive session for:
"discussion of any matter which would result in
the disclosure of public records or the information contained therein described
in subsection (b) of section 1-19."
13. Section
1-19(b)(1), G.S., permits the nondisclosure of:
"preliminary drafts or notes provided the public
agency has determined that the public interest in withholding such documents
clearly outweighs the public interest in disclosure."
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3
14. However,
1-19(c), G.S., further provides:
"Notwithstanding the provisions of subdivisions
(1) and (16) of subsection (b) of this section, disclosure shall be required of
(1) interagency or intra-agency memoranda or letters, advisory opinions,
recommendations or any report comprising part of the process by which
governmental decisions and policies are formulated, except disclosure shall not
be required of a preliminary draft of a memorandum, prepared by a member of the
staff of the public agency, which is subject to revision prior to submission to
or discussion among members of such agency..." [Emphasis added.]
15. It is
found that the respondent's deliberations on case #1158 constitute part of the
process by which governmental decisions are formulated.
16. It is
further found that an item which is the subject of discussion among agency
members does not constitute a preliminary draft within the meaning of
1-19(b)(1) and 1-19(c), G.S.
17. It is
therefore concluded that 1-18a(e)(5) and 1-19(b)(1), G.S., do not
authorize the respondent to convene in executive session for the purpose of
deliberating and drafting a decision on the matter in question.
18. The
respondent also claims that 39-7J of the Norwalk Code authorizes the
respondent to convene in executive session to deliberate on a pending matter.
19. It is
concluded that this municipal ordinance does not supersede, or provide an
exemption to, the open meeting requirements of the FOI Act.
20. The
respondent further maintains that 4-181(b), G.S., authorizes non-public
communication between agency members.
21. Section
4-181(a), G.S., prohibits ex parte communications between a hearing officer and
a party to a contested case, and 4-181(b), G.S., permits agency members
and employees to communicate with one another, so long as none of them have
received a prohibited communication as defined in subsection (a).
22. It is
concluded that 4-181(b), G.S., does not provide an exemption to the open
meetings requirements of the FOI Act.
#FIC 95-222 Page 4
23. The
respondent also maintains that it was authorized to meet in executive session
because it was acting as a quasi-judicial body, conducting jury-type
deliberations and because it must consider the income of the tenant and
possible retaliation by the landlord.
24. It is
concluded that the policy arguments cited by the respondent do not provide an
exemption to the open meetings requirements of the FOI Act.
25. It is
therefore concluded that by meeting in executive session to deliberate on case
#1158, the respondent violated 1-18a(e) and 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.
Henceforth, the respondent shall strictly comply with the requirements
of 1-18a(e) and 1-21(a), G.S., with respect to executive sessions.
Approved by Order of the
Freedom of Information Commission at its regular meeting of June 12, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-222 Page
5
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 CONTESTED
CASE ARE:
John P. Reilly
The Hour
346 Main Avenue
Norwalk, CT 06851
Norwalk Fair Rent Commission
c/o Sara L. Oley, Esq.
Assistant Corporation Counsel
P.O. Box 798
Norwalk, CT 06856-0798
Elizabeth A. Leifert
Acting Clerk of the
Commission