FIC1987-220

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

H. Richard Borer, Sr.,

Complainant

against Docket #FIC 87-220

The Mayor of West Haven's Solid Waste Task Force,

Respondent December 9, 1987

The above-captioned matter was heard as a contested case on August 28, 1987, 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 August 4, 1987 the complainant alleged the following violations:

a. The respondent failed to filed a schedule of its regular meetings;

b. The respondent convened in executive session during its meetings of July 14, 1987 and July 16, 1987 for an improper purpose; and

c. The respondent failed to file minutes of its continued executive session held on July 17, 1987.

3. The complainant requested the imposition of a civil penalty against the respondent.

4. With respect to paragraph 2a, above, it is found that members of the respondent were appointed in May, 1987 by the Mayor of West Haven to address the city's solid waste matters.

Docket #FIC 87-220 Page 2

5. It is also found that the respondent has not filed a schedule of regular meetings with the town clerk and whenever it meets it calls a "special meeting."

6. It is found, however, that there is no provision under the Freedom of Information Act which states that an agency must file a schedule of regular meetings in order to conduct its business.

7. It is therefore concluded that the respondent did not violate any provision of the Freedom of Information Act by failing to file a schedule of regular meetings.

8. With respect to paragraph 2b, above, it is found that the respondent convened in executive session during its meeting of July 14, 1987 for the purpose of discussing contractual negotiations with Solid Waste Disposal of Connecticut, Inc., (hereinafter "Solid Waste, Inc.").

9. The respondent claims that the July 14, 1987 executive session was properly held pursuant to §§1-18a(e)(4), 1-18a(e)(5) and 1-19(b)(1), G.S.

10. It is found that in attendance at the July 14, 1987 executive session were counsel for Solid Waste, Inc. and some of its officers along with a member of the respondent.

11. It is found that the purpose for the executive session was to discuss the terms of a new contract between Solid Waste, Inc., and the City of West Haven concerning the disposal of city solid waste and to answer questions concerning the same. Some of the topics discussed in executive session were payment, conditions of disposal, location, extent of the site and the impact the new site would have on the existing site.

12. It is concluded that the July 14, 1987 executive session was not properly convened to discuss the selection of a site or the lease, sale or purchase of real estate by a political subdivision within the meaning of §1-18a(e)(4), G.S.

13. It is also concluded that the respondent failed to prove that the July 14, 1987 executive session was convened to discuss a matter which would result in the disclosure of public records exempt from disclosure pursuant to §§1-18a(e)(5) and 1-19(b)(1), G.S.

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14. With respect to non-agency members attending the executive session in question, the respondent claims that the presence of the non-agency personnel was due to the fact that counsel for Solid Waste, Inc. refused to discuss any terms of the new contract in public.

15. It is found, however, that the respondent failed to prove that all persons attending the July 14, 1987 executive session, other than members of the agency, attended only for the period for which their presence was necessary to present testimony or opinion to the members of the respondent.

16. It is found that the respondent violated §1-21g, G.S. by allowing non-agency members to attend the executive session in question.

17. It is found that again on July 16, 1987 the respondent convened in executive session to discuss what transpired at the July 14, 1987 executive session.

18. The respondent claims that the July 16, 1987 executive session was properly held pursuant to §§1-18a(e)(4), 1-18a(e)(5) and 1-19(b)(1), G.S.

19. It is concluded, however, that the July 16, 1987 executive session was not properly convened to discuss the selection of a site or the lease, sale or purchase of real estate by a political subdivision within the meaning of §1-18a(e)(4), G.S.

20. It is concluded that for the reasons set forth at paragraph 12, above, the respondent task force failed to prove that the July 16, 1987 executive session was held for a permissible purpose within the meaning of §§1-18a(e)(5) and 1-19(b)(1), G.S.

21. With respect to paragraph 2c, above, it is found that the respondent failed to file minutes of its July 17, 1987 executive session in accordance with §1-21(a), G.S.

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22. The Commission notes that the respondent violated numerous provisions of the Freedom of Information Act which indicates a clear lack of knowledge on its part concerning the requirements of the Act.

23. As a public agency the respondent has a responsibility and obligation to itself as well as the public it serves, to become knowledgeable about the requirements of the Freedom of Information Act.

24. The Commission declines to impose a civil penalty against the respondent as requested by the complainant.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondent henceforth shall convene in executive session only for one or more of the permissible purposes listed at §1-18a(e), G.S., and shall limit attendance at such executive sessions to its members and to persons whose presence is necessary within the meaning of §1-21g, G.S.

2. The respondent shall provide the complainant with copies of all existing records which reflect what was discussed at the July 14, 1987 and the July 16, 1987 executive sessions. If no such records exist, the respondent, within one week of the Final Decision in this matter, shall provide the complainant with an affidavit so stating.

3. If no records reflecting what was discussed at the July 14, 1987 and July 16, 1987 executive sessions exist, the respondent, within two weeks of the Final Decision in this matter, also shall provide the complainant with a memorandum reflecting, to the fullest extent possible, the discussions and occurrences at the executive sessions.

4. Each member of the respondent shall, within two weeks of the Final Decision in this matter, read and study the terms of the Freedom of Information Act, §§1-15, 1-18a, 1-19 to 1-19c, inclusive and §§1-20 to 1-21k, inclusive, G.S., and shall, at the end of such two weeks, provide the Commission with an affidavit stating that the member is familiar with the requirements of the Freedom of Information Act.

Approved by order of the Freedom of Information Commission at its special meeting of December 9, 1987.

Catherine H. Lynch

Acting Clerk of the Commission