FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL DECISION
William
Tronosky, Michael J. Fox and Frank DeMaio,
Complainants
against Docket #FIC 86-10
The Newington
Board of Fire Commissioners,
Respondent July 9, 1986
The above captioned matter was heard
as a contested case on May 20, 1986, at which time the complainant 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:
1.
The respondent is a public agency within the meaning of 1-18a(a),
G.S.
2.
By letter of complaint filed with the Commission on January 16, 1986 the
complainants alleged that the respondent violated the Freedom of Information
Act when it convened in executive session at a meeting held on December 12,
1985 without taking the required two-thirds vote in open session, to discuss
the cost of refurbishing old truck 1.
3.
The complainants further alleged that the respondent violated the
Freedom of Information Act when it posted a notice on December 16, 1985 of two
executive sessions to take place on December 19, 1985 and December 30, 1985,
then subsequently revised the notice to refer to these meetings as special
meetings.
4.
At the hearing before the Commission, the respondent moved to dismiss
the complaint on the basis that the Commission lacked jurisdiction to determine
the complaint because the meetings in question were properly noticed.
5.
It is found that a properly noticed meeting does not remove the
Commission's primary jurisdiction over same.
Docket #FIC
86-10
Page 2
6.
The respondent's motion to dismiss was therefore denied.
7. The respondent moved to dismiss the complaint on the ground that
the complainants failed to file an appeal within 30 days of the alleged
violation.
8.
It is found that pursuant to 1-21i(b), G.S. a notice of appeal is
deemed filed on the date it is postmarked, if received more than 30 days after
the date of of the denial from which such appeal is taken.
9.
The respondent's motion to dismiss was therefore denied.
10.
The respondent moved to dismiss the complaint on the ground that the
complaint was not heard within the statutory time period.
11.
This case has been validated pursuant to P.A. 86-408 so that the failure
of the Commission to comply with the time periods set forth at 1-21i(b),
G.S. does not deprive the Commission of jurisdiction.
12.
The respondent moved to dismiss the complaint on the ground that the
Commission failed to send notice of the appeal to the respondent upon receipt.
13.
It is found that sending a notice of appeal to the respondent 6 days
after receiving such notice does not deprive the Commission of jurisdiction to
determine the complaint.
14.
The respondent's motion to dismiss was therefore denied.
15.
It is found that the respondent convened in executive session on December 12, 1985 without taking
the required two-thirds vote in violation of 1-21(a), G.S., to discuss
refurbishing old truck 1 and to discuss "certain commercial and financial information given in confidence by
certain suppliers and potential bidders."
16.
The respondent claims that it convened in executive session for a
permissible purpose within the meaning of 1-18a(e)(3), G.S.
17.
It is found that the respondent failed to prove that discussing the
refurbishing of a fire truck constituted matters concerning security strategy
or devices affecting public security within the meaning of 1-18a(e)(3),
G.S.
18.
It is therefore concluded that such a discussion was not a permissible
purpose for an executive session within the meaning of 1-18a(e)(3), G.S.
Docket #FIC
86-10 Page 3
19.
The respondent also claims that it convened in executive session for a
permissible purpose within the meaning of 1-18a(e)(5), G.S., to discuss
records which are exempt from disclosure pursuant to 1-19(b)(1),
1-19(b)(5) and 1-19(b)(7), G.S.
20.
It is found that the respondent failed to prove that it convened in
executive session to discuss any matter which would result in the disclosure of
public records exempt from disclosure pursuant to 1-19(b), G.S.
21.
It is therefore concluded that 1-18a(e)(5), G.S., did not provide a
permissible purpose for the executive session in question.
22.
With respect to paragraph 3, above, it is found that the notice of
December 16, 1985 constituted a technical error which was superceded by the
December 18, 1985 notice which correctly stated the two meetings in question
would be held in open session.
23.
It is therefore concluded that the respondent violated no provision of
the Freedom of Information Act by posting a subsequent notice.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above captioned complaint:
1.
The respondent shall henceforth act in strict compliance with
requirements of 1-21, G.S.
2.
The Commission notes that it would serve no useful purpose to declare
the December 12, 1985 meeting null and void in view of the fact that no action
was taken by the respondent in executive session.
Approved by order of the Freedom of Information Commission at its regular meeting of July 9, 1986