FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

David Bouvier,

 

 

Complainants

 

against

 

Docket #FIC 1999-279

Pasquale Corso, President, Legislative Council,
Town of Hamden; Evelyn Parise, Clerk, Legislative
Council, Town of Hamden; Carl Amento, Frank
Cesare, Curt Leng, and Carol Noble, as members,
Legislative Council, Town of Hamden,

 

 

Respondents

January 26, 2000

 

 

 

The above-captioned matter was heard as a contested case on September 1, 1999, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing on this matter, the complainant withdrew his complaint with respect to Margaret Devane and the caption of the complaint has been changed accordingly

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1.     The respondents are public agencies within the meaning of §1-200(a), G.S. [formerly §1-18a(1), G.S.].

 

2.     It is found that by letters dated May 21, 1999, and June 2, 1999, the complainant made a request to the clerk of the legislative council for a copy of:

 

a.      the “chop list” which was passed out by some members of the Legislative Council (hereinafter “council”) on May 12, 1999;

b.     a list of all votes taken on May 12, 1999, and vote tallies;

c.      and the vote tallies of all votes that changed because of the revote taken on May 12, 1999. 

3.     By letter dated June 9, 1999 and filed on June 14, 1999, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.      holding an unnoticed meeting on May 11, 1999;

b.     by limiting discussion of members of the council at the council’s meeting of May 12, 1999 (hereinafter “May 12th meeting”) on budget items;

c.      and by failing to provide copies of the records requested as described in paragraph 2, above. 

 

The complainant also requested the imposition of civil penalties against the respondents.

 

4.     With respect to the complainant’s allegation in paragraph 3a, above, §1-200(2), G.S. [formerly §1-18a(2), G.S.], provides in relevant part that:

 

“[m]eeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and communication by or to a quorum of a public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.

 

            5.    Section 1-225(a), G.S. [formerly §1-21(a), G.S.], provides in relevant part that:

 

 . . . [n]otice of each special meeting of every public agency . . . shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state . . .

 

6.     It is found that on May 11, 1999, the council met to conduct its meeting scheduled for that night (hereinafter “May 11th meeting”) but after some discussion regarding the lack of an agenda for the meeting, which is not an issue in this case, the meeting was canceled.

 

7.     It is found that the council’s budgetary process is governed by a strict time schedule and that since the May 11th meeting was canceled, the council lost a night to deliberate on budgetary items and was behind schedule.

 

8.     It is found that in light of the situation described in paragraph 7, above, and after the May 11th meeting was adjourned and members of the public and the council dispersed, the leader of the Democratic Party, Mrs. Carol Noble, suggested to four other democrats that “they stay and do some work on the budget” (hereinafter “May 11th gathering”).

 

9.     It is found that two Republicans joined the five Democrats and proceeded to go through the budget and discuss each item therein.  Each person took notes during the discussion.

 

10. At the hearing on this matter, the respondents argued that because there was no quorum and because no votes were taken, the May 11th gathering was a workshop and not a meeting within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].  The respondents moved to dismiss the complaint on the ground that no meeting, as defined in §1-200(a), G.S. [formerly §1-18a(1), G.S.], was held, relying on the decision in Town of Windham v. FOIC, 48 Conn. App. 529 (1998).

 

11. It is found that the purpose of the May 11th gathering was to save time at the May 12th meeting by holding the discussion, at least with respect to those present, that would have taken place at the May 11th meeting and to eliminate the need for such discussion at the May 12th meeting.

 

12. It is found that the seven members present at the May 11th gathering did not constitute a quorum of the fifteen member respondent council.

 

13. It is found that at the May 12th meeting, most members of the respondent council had either a “chop list”, which was created as a result of the may 11th gathering and which reflected the results of the discussions of the May 11th gathering, or their own notes taken during the May 11th gathering.

 

14. It is found that most members of the respondent council referred to the “chop list” or their notes during the proceedings of the May 12th meeting. 

 

15. It is found that the results of the May 11th gathering influenced members of the respondent council who were not in attendance at the May 11 gathering.

 

16. It is found that at the May 12th meeting, the respondent council, with little discussion, voted on and passed all budgetary line items. 

 

17. The respondents moved to dismiss this complaint on the ground that no meeting as defined in §1-200(2), G.S. [former §1-18a(2), G.S.] was held. In this regard the respondent relied on Town of Windham v. FOIC, 48 Conn. App. 529 (1998).

 

18. It is concluded that, in determining whether a gathering of less than a quorum of members of a public agency constitutes a “meeting” pursuant to §1-200(2), G.S. [formerly §1-18a(2), G.S.], the most relevant precedents are two decisions of the Appellate Court, Emergency Medical Services Commission of the Town of East Hartford v. FOIC, 19 Conn. App. 352 (1989) and the  Town of Windham , supra.

 

19. It is also concluded that Emergency Medical Services construes §1-200(a), G.S. [formerly §1-18a(2), G.S.], to include in the definition of “meeting” a hearing or proceeding in which a quorum of the agency is not present, while Town of Windham concludes that without a quorum there can be no meeting.  The Supreme Court declined to clarify the conflict between these two Appellate Court decisions [249 Conn. 291 (1999)].  Accordingly, pending resolution of this conflict by the Supreme Court, the Commission continues to believe that Emergency Medical Services provides the more persuasive construction of §1-200(2), G.S. [formerly §1-18a(2), G.S.].

 

20. Accordingly, the respondent’s motion to dismiss, which was based on the Town of Windham, is denied; and it is concluded, based upon the findings at paragraphs 5 through 13, above, that the May 11th gathering constituted a “other proceeding” and there a “meeting” of the council within the meaning of §1-200(a), G.S. [formerly §1-18a(2), G.S.], notwithstanding the absence of a quorum.

 

21. Consequently, it is concluded that the respondents violated §1-225, G.S. [formerly §1-21, G.S.], by conducting an unnoticed meeting on May 11, 1999.

 

22. With respect to the complainant’s allegation described in paragraph 3b, above, regarding the respondent president limiting discussion at the May 12th meeting, it is found that the FOI Act does not require that members of an agency be permitted to speak during that agency’s meeting.  Consequently, it is concluded that the respondents did not violate the FOI Act with respect to such allegation.

 

23. With respect to the complainant’s allegation, as described in paragraph 3c, above, that the respondents failed to provide the complainant with the requested records described in paragraph 2, above, §1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:

 

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

24. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

25. It is found that the records described in paragraph 2a and 2b, above, are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

 

26. It is found that the respondents failed to prove that any exemption to disclosure applies to the records described in paragraph 2a and 2b, above.

 

27. It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S. [formerly §§1-19(a) and 1-15(a), G.S., respectively], by failing to promptly comply with the complainant’s request for the records described in paragraph 2a and 2b, above.

 

28. It is found that that no record exists responsive to the complainant’s request described in paragraph 2c, above.

29.  It is further found that the FOI Act does not require an agency to create records.

 

30. Consequently, it is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S. [formerly §§1-19(a) and 1-15(a), G.S.], with respect to the requested record described in paragraph 2c, above.

 

31. The Commission declines to impose a civil penalty under the facts and circumstances of this case.

 

 

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

 

1.     Henceforth the respondents shall strictly comply with the notice provisions of §1-225, G.S. [formerly §1-21,G.S.] .

 

2.     The respondents shall forthwith provide the complainant with a copy of the records described in paragraphs 2a and 2b, of the findings, above.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

January 26, 2000.

 

 

_________________________

Melanie R. Balfour

Acting Clerk of the Commission

 


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:

 

 

David Bouvier

21 Fans Rock Road

Hamden, CT  06518

 

 

Pasquale Corso, President, Legislative Council, Town of Hamden; Evelyn Parise, Clerk, Legislative Council, Town of Hamden; Carl Amento, Frank Cesare, Curt Leng, and Carol Noble, as members, Legislative Council, Town of Hamden

 

Pasquale Corso

97 White Drive

Hamden, CT  06514

 

Evelyn Parise

64 Adla Drive

Hamden, CT  06514

 

Carl Amento

273 Highland Avenue

Hamden, CT  06518

 

Frank Cesare

45 Taft Street

Hamden, CT  06514

 

Curt Leng

35 Atlas Street

Hamden, CT  06517

 

Carol Noble

Nine Shepard Hill

Hamden, CT  06514

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC1999-279FD/mrb/01/28/00