FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 29, 2002, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2002-315; Norman B. Seney v. Daniel S. Rovero, Mayor, Town of Putnam; Douglas Cutler, Town Administrator, Town of Putnam; and Board of Selectmen, Town of Putnam.

 

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(1), G.S.

 

2.      By letter dated August 2, 2002 and filed on August 6, 2002, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening in executive session on July 15, 2002, for an impermissible purpose.  The complainant requested the imposition of civil penalties against the respondents.

 

3.      It is found that the respondent board was scheduled to hold a regular meeting on July 15, 2002 during which it planned to discuss the pistol permit application of a Mr. Glenwood S. Curtis, Jr.

 

4.      It is found that, prior to the July 15, 2002 meeting, the town attorney informed the respondent mayor, in a June 26, 2002 letter, that there was information in Mr. Curtis’ application regarding a “non-disclosable nolle” of a criminal case that was filed against him.

 

5.      It is found that in an effort to avoid violating any confidentiality rights Mr. Curtis may have had regarding the case and/or the nolle, the respondent board convened in executive session to discuss his application.

 

6.      With respect to the executive session, the  respondents argued in their brief that under §1-200(6)(e), G.S., “any matter which would result in a disclosure of information described in subsection (b) of §1-210 is confidential” and that “§1-210 indicates that preliminary drafts and notes are exempt as are personnel or medical files or similar files, the disclosure of which would constitute an invasion of privacy, and law enforcement records.”  The respondents also argued that pursuant to §52-142a, G.S., the records are exempt from disclosure under §1-210(b)(12), G.S., as records obtained by illegal means.  The respondents argued that the respondent board was concerned with protecting the confidentiality to which Mr. Curtis was entitled under §§1-200, 1-210, and 54-142a, G.S., while discharging its statutory duty, and that if it had discussed the application in an open session, it may well have violated the rights of Mr. Curtis. 

 

7.      Section 1-225(a), G.S., provides in relevant part that “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public . . . .”

 

8.      Section 1-200(6), G.S., provides that in relevant part that: 

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for . . .(E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

9.      Section 1-210(b), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of:

 

(1)    Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . .;

 

(2)    Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . .;

 

(3)    Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216 . . .;

 

and

 

(12)    Any information obtained by the use of illegal means . . . .

 

10.  Section 54-142a, G.S., provides in relevant part that:

 

(c) Whenever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased . . .;

 

and 

 

(e) The clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record . . . .

 

            11.  It is found that although Mr. Curtis’ application contained information relative to a nolle more than thirteen months old at the time of the July 13, 2002 meeting of the respondent board, no evidence was presented at the hearing in this matter that such information had been erased pursuant to the provisions of §54-142a(c), G.S. 

 

            12.  It is found that §54-142a(e), G.S., provides that court clerks, judicial department employees and law enforcement officials shall not disclose records or information contained in records which fall within the meaning of §54-142a(c), G.S.

 

13.  It is found that the respondents are not court clerks, judicial department employees and law enforcement officials, within the meaning of §54-142a(e), G.S., and that therefore, under the facts and circumstances of this case, such provision does not provide an exemption from mandatory disclosure. 

 

13.  It is also found that, while the respondents may have received the information described in paragraph 11, above, in contravention of procedures set forth in the erasure statutes, there is no evidence in the record to show that such information was obtained by the use of illegal means, within the meaning of §1-210(b)(12), G.S.

 

14.  It is found that the respondents failed to prove that the records in Mr. Curtis’ application regarding the nolle described in paragraph 11, above, are exempt records within the meaning §§1-210(b)(1), (2), (3), and (12), G.S.

 

15.  It is therefore found that the July 15, 2002, executive session discussion at issue herein was not for a permitted purpose under §1-200(6), G.S.

 

16.  It is concluded, therefore, that the respondent mayor and the respondent board violated §1-225(a), G.S., by convening in executive session for an impermissible purpose.

 

17.  Notwithstanding the conclusion in paragraph 16, above, the Commission declines to consider the imposition of civil penalties in this matter.

 

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

 

1.      Henceforth the respondent mayor and the respondent board shall strictly comply with the executive session and the open meetings provisions of §§1-200(6) and 1-225(a), G.S.

 

            2.  The complaint against the respondent deputy mayor is dismissed, since there is no showing that such official is a member of the respondent board.

 

 

 

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

July 9, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Norman B. Seney

171 Elmwood Hill Road

Thompson, CT  06277

 

Mayor, Town of Putnam; Deputy Mayor,

Town of Putnam; and Board of Selectmen,

Town of Putnam

c/o William St. Onge, Esq.

Boland, St. Onge & Brouillard

PO Box 550

Putnam, CT  06260-0550

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-357FD/abg/07/11/2003