FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Justin D. Radolf,

 

Complainant

 

 

against

Docket #FIC 2002-537

The Adams Committee, State of Connecticut,

University of Connecticut Health Center; Board

of Directors, State of Connecticut, University of

Connecticut Health Center; The Health Affairs

Committee, State of Connecticut, University of

Connecticut Health Center; and State of Connecticut,

University of Connecticut Health Center,

 

 

Respondents

October 8, 2003

 

 

 

 

            The above-captioned matter was heard as a contested case on May 8, 2003, at which time the complainant and the respondents appeared 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 respondents board of directors, health affairs committee, and health center are public agencies within the meaning of §1-200(1), G.S.

 

            2.  By letter of complaint, dated November 11, 2002, and filed with the Commission on November 13, 2002, the complainant appealed, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to conduct certain meetings in accordance with the requirements of such Act.  Specifically, the complainant alleged that:

 

a.       i) the Adams committee failed to provide public notice of its meetings, ii)failed to have available minutes of its meetings and iii) failed to provide the complainant with notice that he would be a topic of discussion during its executive session;

b.      i) the respondent board of directors  failed to record the vote authorizing the convening of the executive session on September 9, 2002, ii) failed to include in the minutes of the September 9, 2002 meeting the reason for convening in executive session, as well as the names of the individuals who participated in such executive session, and iii) failed to provide the complainant with notice that he would be a topic of discussion during its executive session; and

c.       the respondent health affairs committee i) failed to record the vote authorizing the convening of the executive session on September 20, 2001, ii) failed to include in the minutes of the September 20, 2001 meeting the reason for convening in executive session, as well as the names of the individuals who participated in such executive session, and iii) failed to provide the complainant with notice that he would be a topic of discussion during its executive session.

 

In his complaint, the complainant further alleged that he first became aware of the alleged violations when he received a letter dated October 31, 2002 from the respondent health center’s Director of Health Affairs Policy Planning. 

 

3.  The respondents contend that the complaint was untimely filed and therefore, that this Commission lacks jurisdiction to hear the complainant’s appeal.

 

            4.  With respect to the Commission’s jurisdiction, section 1-206(b)(1), G.S., provides in relevant part:

 

any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. [Emphasis added].

 

The Adams Committee

            5.  With respect to the allegation as described in paragraph 2a, above, it is found that the Adams committee held meetings between October 2001 and the Spring of 2002, which meetings were not publicly noticed and for which no minutes are available for public inspection.

 

            6.  The complainant claims that he first “discovered these violations of the Freedom of Information Act” upon receipt of an October 31, 2002 letter from the respondent health center’s Director of Health Affairs Policy Planning.  For purposes of the Commission’s jurisdiction, the critical date is the date on which the complainant first became aware that the Adams committee held “unnoticed or secret meetings”.

 

            7.  It is found that on or about November 6, 2001 the Adams committee provided the complainant with notice of its intent to conduct a meeting on November 19, 2001.  Indeed, such meeting was conducted on November 19, 2001 and the complainant attended and was interviewed during a portion of the meeting.  It is also found that subsequent to the November 19, 2001 meeting, but prior to the committee’s final meeting/s held during the Spring of 2002, the complainant was interviewed again by some members of the committee. [1]

 

            8.  It is therefore concluded that the complainant had “notice in fact” of the November 19, 2001 meeting, and the subsequent meeting during which he was interviewed, described in paragraph 7, above, on November 19, 2001 and on the date of the subsequent meeting, respectively.  The complainant’s appeal with respect to those two meetings should therefore have been filed within thirty days of November 19, 2001 meeting and thirty days of the subsequent meeting, respectively.  Because the appeal was filed on November 13, 2002, such appeal is untimely (except for that portion alleging failure to file minutes, which is addressed further in paragraphs 22 and 23, below) within the meaning of §1-206(b)(1), G.S., and therefore, this Commission lacks jurisdiction to hear the complainant’s appeal with respect to allegations concerning the Adams committee meetings held on November 19, 2001 and on the date of the subsequent interview.

 

9.  With respect to the remaining meetings held by the Adams committee, it is found that the complainant received notice in fact of such meetings upon receipt of an unredacted copy of the Adams Committee Report on or about October 24, 2002 when Dr. Wetstone, M.D., sent such report to the complainant’s counsel (hereinafter “other meetings”).  The Report makes specific reference to such meetings. [2]  

 

            10.  It is therefore concluded that the complainant received “notice in fact” of the “other” meetings on or about October 24, 2002 when he received a copy of the Adams Committee Report.  The complainant’s appeal was filed on November 13, 2002, well within thirty days of October 24, 2002.  Therefore, the appeal is timely within the meaning of §1-206(b)(1), G.S., and, this Commission has jurisdiction to hear the complainant’s appeal with respect to allegations concerning the “other” Adams committee meetings.  This Commission also has jurisdiction to hear the portion of the appeal alleging that the Adams committee failed to have available the minutes of its meetings because §1-210(a), G.S., places an ongoing obligation on a public agency to “make, keep and maintain a record of the proceedings of its meetings”.  [Emphasis added.]

 

11.  The respondents contend that the Adams committee is not a “public agency” within the meaning of §1-200(1), G.S.  They also contend that all the meetings held by the Adams committee fall within the §1-200(2), G.S., meeting exclusion, because such meetings constituted “administrative or staff meetings of a single-member public agency”.

 

12.  Section 1-200(1), G.S., defines “public agency” or “agency” as:

 

(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222. [Emphasis added.]

 

13.  It is found that the Adams committee was an ad hoc committee created in response to a charge by Dr. Peter Deckers, Executive Vice President for Health Affairs, University of Connecticut Health Center.

 

14.  It is found that the Adams committee was created to reexamine the School of Medicine’s policies and procedures as they relate to data ownership and research misconduct.  It is also found that the Adams committee’s task was to examine how the case of Research Misconduct of Justin Radolf, M.D., was handled.

 

15.  It is found that Dr. Deckers requested that the Adams committee provide specific recommendations as to how the existing policies could be made more functional and protect the rights of all concerned.

 

16.  It is found that the Adams committee was comprised of health center as well as non-health center personnel.

 

17.  It is found that the Adams committee met with Dr. Deckers on October 25, 2001, to go over the charge, review committee composition and plan strategy.  The committee then met on November 19, 2001.  Further meetings were held to review the first and second drafts of the committee’s report.  Further drafts were reviewed over Spring 2002, until all agreed with the final report.

 

18.  It is concluded that the Adams committee was a “public agency” within the definition and meaning of §1-200(1), G.S.

19.  Section 1-200(2), G.S., provides in relevant part that:

‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember 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. ‘Meeting’ shall not include . . . an administrative or staff meeting of a single-member public agency.

20.  It is found that Dr. Decker is a single-member public agency, within the meaning of §1-200(2), G.S. 

21.  It is also found that the Adams committee’s activities pertained directly to the management and administration of the internal affairs of the School of Medicine.

            22.  It is therefore concluded that the Adams committee’s activities constituted “administrative or staff meetings” within the meaning of §1-200(2), G.S., and are therefore not subject to the open meeting requirements of §1-225(a), G.S.

 

            23.  Consequently, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 2a, above.

 

Notice To The Complainant of The September 9, 2002 and September 20, 2001 Executive Sessions

            24.  With respect to the allegations described in paragraph 2biii), and 2ciii), above, concerning lack of notice to the complainant that he would be a topic of discussion during executive session, it is found that the respondents board of directors and health affairs committee held regular meetings on September 9, 2002 and September 20, 2001, respectively.

 

            25.  It is found that during the meetings, described in paragraph 24, above, the respondents board of directors and health affairs committee convened in executive session.

 

            26.  It is found that no purpose was stated by the respondents board of directors and health affairs committee for convening in such executive sessions prior to such sessions.  It is also found that the minutes of the meetings in question do not indicate the purpose of the executive sessions.

 

            27.  It is found however, that in response to a request for minutes of board meetings in which Dr. Radolf was discussed, Dr. Wetstone indicated in an October 31, 2002 letter to the complainant’s counsel that “[T]he matter in question was discussed in the executive session of the Health Affairs Committee (HAC) on September 20, 2001 and again during the executive session of the University of Connecticut Board of Director (sic) (BOD) on September 9, 2002. [3]

 

            28.  The respondents board of directors and health affairs committee contend that the complaint in this matter, with respect to the issue of providing notice to the complainant of the executive sessions, was not timely filed since it was filed on November 13, 2002, more than thirty days after the September 9, 2002 and September 20, 2001, executive sessions.

 

            29.  It is found that the complainant was discussed during the executive sessions held on September 20, 2001 and September 9, 2002.  It is also found that the respondents board of directors and health affairs committee failed to prove that the executive session discussions about the complainant were not discussions concerning the complainant’s “appointment, employment, performance, evaluation, health or dismissal” within the meaning of §1-200(6)(A), G.S.  It is further found that the complainant did not receive “notice in fact”, within the meaning of §1-206(b)(1), G.S., that he was discussed in such executive sessions, until his counsel’s receipt of the October 31, 2002 letter, described in paragraph 27, above. 

 

            30.  Consequently, it is concluded that with respect to the allegations described in paragraph 2biii) and 2ciii), above, concerning lack of notice to the complainant that he would be a topic of discussion during executive session, the complainant’s appeal is timely and therefore, this Commission has jurisdiction to hear such appeal.

 

            31.  It is further concluded that the respondents board of directors and health affairs committee violated §1-200(6)(A), G.S., when they discussed the complainant’s “appointment, employment, performance, evaluation, health or dismissal” within the meaning of §1-200(6)(A), G.S., without apprising him of the intended discussions and without affording him an opportunity to require that those discussions be held at an “open” meeting.

 

Record of Vote, Purpose of Executive Session and Those Attending Executive Session

            32.  With respect to the allegations described in paragraph 2bi), 2bii), 2ci) and 2cii), above, concerning the respondents board of directors and health affairs committee’s failure to record the vote authorizing the convening of the executive sessions held on September 9, 2002 and September 20, 2001, respectively, failure to include in the minutes of the September 9, 2002 and September 20, 2001 meeting the reason for convening in executive session, and failure to include the names of the individuals who participated in such executive sessions, §1-210(a), G.S., places an ongoing obligation on a public agency to “make, keep and maintain a record of the proceedings of its meetings”.  [Emphasis added.]

 

            33.  Section 1-225(a), G.S., further provides that “the votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.”

 

            34.  Section 1-225(f), G.S., also provides that “a public agency may hold an executive session as defined in subdivision (6) of section 1-200, 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 section 1-200, G.S.”  

 

            35.  Section 1-231(a), G.S., further provides that “the minutes of such executive session shall disclose all persons who are in attendance”. 

 

            36.  It is therefore concluded that this Commission has jurisdiction to hear the complainant’s appeal with respect to the allegations as described in paragraph 2bi), 2bii), 2ci) and 2cii), above, alleging failure to record the vote authorizing the convening of the executive sessions held on September 9, 2002 and September 20, 2001, failure to include in the minutes of the September 9, 2002 and September 20, 2001 meeting the reason for convening in executive session, and failure to include the names of the individuals who participated in such executive sessions.

 

            37.  At the hearing in this matter, the respondent board of directors and health affairs committee conceded that they failed to record the vote authorizing the convening of the executive sessions held on September 9, 2002 and September 20, 2001, respectively, and to include in the minutes of the September 9, 2002 and September 20, 2001 meetings the reason for convening in executive session, and failed to include the names of the individuals who participated in such executive sessions.

  

            38. Consequently, it concluded that with respect to the allegations described in paragraph 2bi), 2bii), 2ci) and 2cii), the respondents board of directors and health affairs committee violated §§1-225(a), 1-225(f) and 1-231(a), G.S.

 

            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 provide notice and ensure opportunity for public discussion at an open meeting prior to discussing an employee in executive session.

 

            2.  Henceforth, the respondents shall take appropriate steps to ensure that they record the vote authorizing the convening of executive sessions, include in their minutes the reason for convening in executive sessions, and include the names of the individuals who attend such executive sessions.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 8, 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:

 

Justin D. Radolf

c/o Thomas W. Bucci, Esq.

Willinger, Willinger & Bucci, P.C.

855 Main Street

Bridgeport, CT  06604

 

The Adams Committee, State of Connecticut,

University of Connecticut Health Center; Board

of Directors, State of Connecticut, University of

Connecticut Health Center; The Health Affairs

Committee, State of Connecticut, University of

Connecticut Health Center; and State of Connecticut,

University of Connecticut Health Center

c/o Jane D. Comerford, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Room LM043

Farmington, CT  06030-3803

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-537FD/abg/10/10/2003



[1] It is not clear from the record in this case the specific date of the subsequent meeting during which the complainant was interviewed.  However, reference is made thereto in the Adams Committee Report, Complainant’s Exhibit U, Page 1, “Drs. Adams and Yeston interviewed Dr. Radolf on a second occasion as he requested. ”

[2] It is not clear from the record in this case the specific dates of the “other” meetings convened by the Adams Committee.  However, reference is made thereto in the Adams Committee Report, Complainant’s Exhibit U, Page 1, “Further meetings were held by the Committee to review the first draft and then the second draft of this report.  Further drafts were reviewed over spring 2002, until all agreed with this report.”

 

[3] In addition, see Complainant’s Exhibit Q (October 3, 2002 letter from Wetstone to Bucci) page 2, second paragraph, second sentence, “There were no discussions of Dr. Radolf in the public portion of any meeting of the Board of Trustees, the Health Affairs Committee…nor the Board of Directors.  No minutes are kept for items discussed in the executive sessions of these committees nor do we maintain and provide agenda for them.  I am not suggesting that no discussions took place, but only that there is no official record of any such discussion.”