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.

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Karen J. Haggett

Clerk of the Commission