FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Donald H. Schiller, Gary Gentile and Record-Journal Publishing Co.,
Complainants
against Docket #FIC 92-332
Southington Ambulance Review Committee,
Respondent August 23, 1993
The above-captioned matter was heard as a contested case on April 13, 1993, 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 of complaint filed October 21, 1992, the complainants appealed to the Commission, alleging that with respect to the respondent's September 24, 1992 meeting:
a. the notice of the meeting did not specify the purpose or agenda of the meeting;
b. the respondent convened in executive session for an improper purpose;
c. the respondent failed to state the reason for convening in executive session; and
d. the respondent failed to file minutes of the meeting with the town clerk.
3. It is found that the respondent held a special meeting on September 24, 1992.
4. It is found that the purpose of the meeting was to discuss the details of an emergency medical call, during which an individual died, answered by Medstar Ambulance Inc., a private company under contract with the town of Southington.
5. It is found that the notice of the September 24, 1992 meeting did not describe the business to be transacted at the meeting.
Docket #FIC 92-332 Page 2
6. It is concluded that the respondent violated 1-21(a), G.S., by failing to include in its special meeting notice a description of the business to be transacted at the meeting.
7. It is also found that the respondent failed to file minutes of the September 24 meeting with the town clerk within seven days after the meeting, although the minutes had been prepared immediately after the meeting and were available from the office of the Director of Health, who is also the chairman of the respondent.
8. It is found that the minutes of the September 24 meeting are public records or files within the meaning of 1-18a(d) and 1-19(a), G.S.
9. It is found that the respondent has no office or regular place of business.
10. Section 1-19(a), G.S., provides in relevant part that each public agency:
shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located ....
11. It is concluded that the respondent violated 1-19(a), G.S., by failing to maintain its minutes with the town clerk.
12. It is found that the respondent during the open portion of the September 24 meeting, discussed with its counsel several possible reasons to convene in executive session, including discussion of medical records, discussion of the performance of a public employee, and discussion of the performance of private employees of the ambulance service performing a public function for the town.
13. It is found that the respondent convened in executive session without stating in the motion to convene the actual purposes for excluding the public.
14. Section 1-21(a), G.S., provides in relevant part:
A public agency may hold an executive session ... upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.
Docket #FIC 92-332 Page 3
15. It is found that while the respondent's reasons to convene in executive session may have been inferable from the discussion that preceded the vote, it is not clear that all of those reasons were voted upon or were the basis for the respondent's decision to exclude the public.
16. It is therefore concluded that the respondent technically violated 1-21(a), G.S., by not stating the reasons for its executive session in its vote to so convene.
17. It is found that while in executive session the respondent discussed in exhaustive detail the sequence of events that occurred when the patient was treated before and after the Medstar ambulance and personnel arrived.
18. In particular, it is found that the respondent discussed the treatment the patient received, whom he received it from, how much time transpired between events, whether certain equipment was used or should have been used, and the performance of a Southington police officer and Medstar employees in treating the patient.
19. It is found under the facts of this case that the discussion in executive session focused on the type and timeliness of the care that the patient received.
20. The respondent maintains that the discussion in executive session was permissible pursuant to 1-18a(e)(5), G.S., because public discussion of the matters described in paragraphs 17 through 19, above, would have resulted in disclosure of medical or similar files within the meaning of 1-19(b)(2), G.S.
21. Section 1-18a(e)(5), G.S., provides that a public agency may exclude the public from an executive session to discuss any matter which would result in the disclosure of public records or the information contained therein described in 1-19(b).
22. It is found that public discussion of the matters described in paragraphs 17 through 19, above, would have resulted in the disclosure of information about the patient's treatment and Medstar's performance.
23. It is also found, however, that the respondent failed to prove that medical files concerning the decedent exist; that, if they do exist, what information is actually contained in them; or, if such files do exist, that the respondent knew at the time of the September 24, 1992 meeting what information was contained in them.
24. It is also found that the respondent failed to prove that the discussion in executive session concerned or was exclusively confined to confidential information contained in such medical or similar files, if they did exist.
Docket #FIC 92-332 Page 4
25. It is therefore found that the respondent failed to prove that discussion of the type and timeliness of the care that the patient received in public session would in this case have resulted in the disclosure of medical or similar files, or the information contained therein, within the meaning of 1-19(b)(2), G.S.
26. It is concluded that the respondent did not permissibly convene in executive session pursuant to 1-18a(e)(5), G.S.
27. The respondent also maintains that it permissibly convened in executive session pursuant to 1-18a(e)(1), G.S., which permits an agency to exclude the public from an executive session to discuss the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee.
28. It is found that the role of a police officer in the treatment of the deceased patient was discussed in the executive session.
29. It is found, however, that the police officer is not employed or supervised by the respondent, and that the respondent has no power to appoint, employ, evaluate or dismiss police officers.
30. It is also found that the police officer was led to believe that his or her performance would not be subject to evaluation, but rather that the respondent was assembling all the information relevant to the decedent's treatment in order to assess, in general terms, the adequacy of the care he received.
31. It is found that the respondent failed to prove that the discussion in executive session concerned the appointment, employment, performance, evaluation, health or dismissal of the police officer.
32. The respondent also maintains that the employees of Medstar perform public functions, and are therefore public employees within the meaning of 1-18a(e)(1), G.S.
33. It is found that the Medstar employees are not subject to appointment, employment, evaluation, or dismissal by the respondent.
34. It is also found that the respondent failed to prove that Medstar is a public agency within the meaning of 1-18a(a), G.S.
35. Additionally, it is found that the discussion in executive session was not about the performance or evaluation of individual Medstar employees, but rather the purpose was to collect information about the deceased patient's treatment and evaluate Medstar's performance as an ambulance service under contract to the town of Southington.
Docket #FIC 92-332 Page 5
36. It is concluded that the respondent did not permissibly convene in executive session pursuant to 1-18a(e)(1), G.S.
37. It is concluded that the respondent violated 1-21(a) and 1-18a(e)(1) and (5), G.S., by convening in executive session for impermissible purposes.
38. In their complaint to the Commission, the complainants requested the imposition of civil penalties against the respondent.
39. It is found that the respondent's violations of the Freedom of Information Act regarding the notice and minutes of its meeting were inadvertent; that the minutes of the meeting, although not filed with the town clerk, were available from the office of the Director of Health (who is also chairman of the respondent), within seven days of the meeting; and that the respondent in good faith reasonably believed that it was convening in executive session for a permissible purpose.
40. The Commission in its discretion therefore declines to impose a civil penalty against the respondent.
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 1-21(a), G.S., concerning notices of special meetings, and concerning the procedure for convening in executive session; with 1-19(a), G.S., concerning the maintenance of public records with the town clerk; and with 1-18a(e)(1) and (5), G.S., concerning permissible purposes for convening in executive session.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 28, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-332 Page 6
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:
Donald H. Schiller, Gary Gentile and Record-Journal Publishing Co.
c/o Atty. Ethel S. Sorokin
Sorokin, Sorokin, Gross, Hyde & Williams P.C.
One Corporate Center
Hartford, CT 06103-3291
Southington Ambulance Review Committee
c/o Atty. Robert A. Izzo
Elliot, Stanek, Izzo & Mazzaccaro
98 Main Street
P. O. Box 578
Southington, CT 06489
Debra L. Rembowski
Acting Clerk of the Commission