FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           The preliminary hearing in this matter was convened pursuant to §1-206(b)(1), G.S., to determine whether there is probable cause to believe that an announced decision of the respondent, or an ongoing practice of the respondent, to meet in executive session is in violation of §§1-200 and 1-225, G.S., and whether the respondent should be temporarily restrained from meeting in executive session for such purpose. 

            The above-captioned matter was heard as a contested case on April 19, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2004-181; Office of the Governor of Connecticut v. State of Connecticut, House of Representatives, Select Committee of Inquiry, and the Matter of Petition for Declaratory Ruling #95, Office of the Governor of Connecticut, Petitioner, filed April 14, 2004. 

              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 §1-200(1), G.S.

2.  The proceedings in this matter are governed by §1-206(b)(1), G.S., which provides in relevant part:

“If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing.  If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections 1-200 and 1-225, the agency shall not meet in executive session for such purpose until the commission decides the appeal.  If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision within five days of the completion of the preliminary hearing.”  

3.  By letter of complaint dated and filed with the Commission on April 16, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by announcing a schedule of depositions for April 22, 2004, at which attendance would be limited to special counsel, the witness, a stenographer or videographer and the chairpersons of the respondent or their designees.  The complainant alleged that such depositions are meetings under §1-200(2), G.S.  

 4.  It is found that the depositions previously scheduled for April 22, 2004 have been cancelled.  It is also found that the respondent has scheduled no other depositions at the time of the hearing in this matter.   

 5. House Bill 5545 (February 2004 session), section 2(a), states:

“Sec. 2. (NEW) (Effective from passage) (a) Notwithstanding any provision of the general statutes, during any inquiry, investigation, impeachment or other proceeding conducted pursuant to Article Ninth of the Connecticut Constitution that is commenced on or after January 1, 2004, by the House of Representatives, all information, records of interviews, reports, statements, depositions, notes, memoranda or other data in the custody of or obtained or prepared by the House of Representatives, any committee established by the House of Representatives in furtherance of the purposes of said Article Ninth, the staff of the House of Representatives or the staff of any such committee shall not be subject to the provisions of section 1-210 of the general statutes, as amended, until such committee transmits its final report to the House of Representatives, provided the committee shall have discretion to disclose any such information prior to the transmittal of the final report.  Information provided to the committee by a public agency that is otherwise disclosable by the public agency pursuant to the provisions of section 1-210 of the general statutes, as amended, shall at all times be disclosable by the originating public agency. Nothing in this section shall be construed to mean that any individual waives any privilege provided by law when providing a document or any other information to any such committee.”

              6.  House Bill 5545 has passed both houses of the General Assembly and was transmitted to the Governor on April 14, 2004.  To date, the Governor has neither signed nor vetoed the bill.  Pursuant to Article Fourth, Section 15 of the Constitution of the State of Connecticut, if the Governor neither signs nor vetoes the bill, it will become effective on April 21, 2004.  Although the Governor has indicated that he will neither sign nor veto the bill, he can change his mind up until 11:59 p.m. on April 20, 2004 and the Commission obviously cannot know if and when such a veto would be overridden by the General Assembly.  

 

7.  It is concluded that because there are currently no depositions scheduled and because the Commission cannot now know for certain what the law will be, if and when the respondent holds depositions in the future, the complaint is not ripe for adjudication at this time.

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

            1.  The complaint is dismissed.  

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 20, 2004.

 

 

___________________________________

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:

 

Office of the Governor of Connecticut

c/o Ross Garber, Esq.

State Capitol

Room 212

Hartford, CT  06106

 

 

 

State of Connecticut, House of

Representatives, Select Committee

of Inquiry

c/o Susan Quinn Cobb, Esq.

Assistant Attorney General

55 Elm Street

Hartford, CT  06141

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2004-187/FD/mes/04/20/2004