FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Ann Brown, Andrew Carroll,
Charles Elias, Lydia Hobbs,
Richard Jeffery, Elizabeth
Perkowski and John Simonds,
Complainants
against Docket
#FIC 94-373
North Stonington Board of
Selectmen,
Respondent October 11, 1995
The above-captioned matter was heard as a contested
case on May 18 and July 19, 1995, at which times the complainants and the
respondent appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
Docket #sFIC 94-367, Larry Greene and Preston Residents Against
Annexation v. Preston First Selectman and 94-372, Cindy Brewster and Residents
Against Annexation v. Joseph A. Lozier, Mayor of Ledyard, were consolidated
with the above-captioned case for hearing.
At the hearing into this matter, the Norwich Bulletin was granted party
status in accordance with the provisions of the Regulations of Connecticut
State Agencies 1-21j-28.
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 dated October 19, 1994 and filed with the Commission on October
21, 1994, the complainants appealed to the Commission alleging that the
respondent violated the Freedom of Information ("FOI") Act by:
a.
denying them access to a copy of "the last best offer"
submitted by the towns of North Stonington, Ledyard and Preston ("the
towns") and all documents and records of prososals and offers used in the
mediation process with the Mashantucket Pequot Tribe ("the tribe")
and Conflict Management Group ("CMG") (hereinafter "requested
records");
b.
failing to issue notice and to maintain minutes of certain
"steering committee" and "basket group" meetings.
Docket #FIC 94-373 Page
2
The complainants in their
complaint request that a civil penalty be imposed upon the respondent.
3. It is
found that the complainants, by letter dated September 15, 1994 requested that
the respondent provide them with a copy of the requested records, described in
paragraph 2a., above.
4. It is
found that the respondent denied the request on or about September 29, 1994.
5. The
Commission takes administrative notice of the record and decisions in contested
cases docket #sFIC 93-190, Susann Viafora and Norwich Bulletin v. Preston Board
of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen, FIC
93-235, Keith Fontaine and Norwich Bulletin v. Preston Board of Selectmen,
Ledyard Town Council and North Stonington Board of Selectmen, FIC 94-136, Ann.
C. Brown, Charles E. Elias and John D. Simonds v. Mayor of Ledyard, North
Stonington First Selectman and Preston First Selectman, FIC 94-367, Larry
Greene and Preston Residents Against Annexation v. Preston First Selectman and
FIC 94-372, Cindy Brewster and Residents Against Annexation v. Joseph A.
Lozier, Mayor of Ledyard.
6. In docket
#FIC 94-136 the Commission found that:
4
...in January 1993, the tribe filed an application with the Bureau of
Indian Affairs requesting that certain lands located within the towns [of
Preston, Ledyard and North Stonington] be taken into trust.
5.
...the towns [of Preston, Ledyard and North Stonington] adopted policies
to oppose the tribe's application to have land transferred in trust.
6.
...as a result of the dispute which arose between the towns [of Preston,
Ledyard and North Stonington] and the tribe concerning the trust acqusition
issue, it was apparent to the towns [of Preston, Ledyard and North Stonington]
that litigation was imminent.
7.
...at the request of the Secretary of the Interior, Congressman
Gejdenson, Senator Lieberman and Senator Dodd the towns [of Preston, Ledyard
and North Stonington] and the tribe agreed in December 1993 to participate in a
mediation process to determine if the dispute could be resolved without
resorting to litigation.
Docket #FIC 94-373 Page
3
7. It is
found that the towns of Preston, Ledyard and North Stonington retained the
services of Perkins Coie, a Washington D.C. law firm, in March 1993, to
consider legal action with respect to the tribe's land acquisition application.
8. It is
found that as a result of the December 1993 agreement, described in paragraph 6
sub-paragraph 7, above, the towns and the tribe entered into a Memorandum of
Understanding, dated April 15, 1994, whereby they agreed to submit their
dispute to a facilitation/mediation process with CMG, a private company hired
by the towns and the tribe to serve as facilitators.
9. It is
found that during the facilitation/mediation process numerous documents
including letters, memoranda, faxes and maps were generated and used by the
towns, the tribe, CMG and the towns' attorneys.
10. It is
found that the requested records consists of those records described in
paragraph 9, above.
11. It is
found that the facilitation/mediation process broke down and ended in September
1994.
12. It is
found that some of the requested records were subsequently destroyed, others
are now in the possession of the respondent's Washington, D.C., attorneys and
some are in the respondent's possession.
13. It is
found that the towns filed suit against the Secretary of the Department of the
Interior in the federal district court for the District of Columbia on May 11,
1995.
14. It is
found that the requested records are public records within the meaning of
1-18a(d), G.S.
15. The
respondent contends that the requested records are exempt from disclosure
pursuant to 1-19(b)(1), (4) and (10), G.S.
16. Section
1-19(b)(4), G.S., allows an agency to withold from disclosure "records
pertaining to strategy and negotiations with respect to pending claims or
pending litigation to which the public agency is a party until such litigation
or claim has been finally adjudicated or otherwise settled." [Emphasis added].
17. Section
1-18a(h)(3), G.S., defines "pending litigation" to mean:
(3)
the agency's consideration of action to enforce or implement legal
relief or a legal right.
Docket #FIC 94-373 Page 4
18. It is
found that the respondent, at the time of the complainants' request, was
considering legal action, within the meaning 1-18a(h)(3), G.S., to enforce
or implement legal relief or a legal right with respect to the land acquisition
dispute.
19. It is
also found that the requested records pertain to strategy and negotiation with
respect to the respondent's consideration of legal action, as described in
paragraph 18, above.
20. With
respect to the allegations described in paragraph 2a., above, it is concluded
that the requested records are exempt pursuant to 1-19(b)(4), G.S.
21. It is
therefore concluded that the respondent did not violate the complainants'
rights when it withheld the requested records from disclosure.
22. However,
the Commission is troubled by the respondent's destruction of some of the
requested records and its failure to keep a true copy of such records in
accordance with sound record management practices.
23. With
respect to the respondent's further claims of exemption, it is found that the
respondent failed to prove that the requested records are exempt pursuant to
1-19(b)(1), G.S., as preliminary drafts or notes, and
1-19(b)(10), G.S., as communications privileged by the attorney-client
relationship.
24. With
respect to the allegation as described in paragraph 2b., above, it is found
that certain unnoticed "steering committee" and "basket
group" meetings at which the respondent, citizens of the towns and CMG
participated and issues concerning the towns and the tribe were discussed were
convened during the period June through August 1994.
25. Section
1-21i(b)(1), G.S., requires filing of a notice of appeal concerning an
unnoticed or secret meeting within thirty days after the person filing the
appeal receives notice in fact that such meeting was held.
26. It is
found that the respondent's meeting minutes for the month of June 1994
expressly refer to "steering committee" and "basket group"
meetings being held and being planned, and also that one of the complainants
was nominated and considered in June, 1994 to serve as a member of the
"steering committee".
27. It is
found that the complainants received notice in fact in August, 1994 at the very
latest and in June/July 1994 at the earliest that the unnoticed "steering
committee" and "basket group" meetings, described in paragraphs
24 and 26, above, were held.
Docket #FIC 94-373 Page 5
28. It is
therefore concluded that the complainants' appeal with respect to the
allegations of unnoticed meetings, as described in paragraph 2b., above was not
timely, as it was not filed within the required thirty day period. Consequently, the Commission lacks
jurisdiction to hear this portion of the complainants' appeal.
29. In light
of the Commission's conclusions in this matter the complainants' request for a
civil penalty is denied.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
complaint is hereby dismissed.
2. The
Commission strongly recommends that the respondent contact the State Public
Records Administrator to apprise itself as to proper public record retention
and management practices and to ensure its compliance with the state's public
record retention and destruction statutes.
Approved by Order of the
Freedom of Information Commission at its regular meeting of October 11, 1995.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 94-373 Page
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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:
Ann Brown, Andrew Carroll,
Charles Elias, Lydia Hobbs, Richard Jeffery, Elizabeth Perkowski and John
Simonds
c/o Richard D. Dixon, Esq.
58 Huntington Street
New London, CT 06320
North Stonington Board of
Selectmen
c/o Frank A. Manfredi, Esq.
Cotter, Greenfield, Manfredi
& Lenes, P.C.
P.O. Box 6002
Yantic, CT 06389
Mr. Keith Fontaine
Norwich Bulletin
66 Franklin Street
Norwich, CT 06360
Elizabeth A. Leifert
Acting Clerk of the Commission