FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 16, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      By letter dated August 21, 2005 and filed on August 22, 2005, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening in executive session during the respondent’s May 10, May 24, June 14, July 13, and August 9, 2005 meetings for the purpose of discussing his pension application, and issues surrounding that application, without giving him notice or an opportunity to require that the discussions be held at an open meeting.

 

3.       Section 1-206(b)(1), G.S., in relevant part, provides:

 

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.  [emphasis added]

 

4.      It is found that the May 10, May 24, June 14, and July 13, 2005 meetings during which the respondent convened in executive sessions, as described in paragraph 2, above, were neither secret nor unnoticed.

 

5.      It is further found that the complainant filed his complaint with respect to the executive sessions held during the May 10, May 24, June 14, and July 13, 2005 meetings more than thirty days after those meetings.

 

6.      Consequently, it is concluded that pursuant to §1-206(b)(1), G.S., the Commission lacks jurisdiction over that portion of the complainant’s appeal described in paragraphs 4 and 5, above. 

 

7.      With respect to the complainant’s allegation that the respondent improperly convened in executive session during its August 9, 2005 meeting, it is found that the respondent held a regular meeting on August 9, 2005, which meeting the complainant attended with his attorney.

 

8.      It is found that during the August 9, 2005 regular meeting, the respondent declared in open session that no action or vote would be taken on the complainant’s pension application and such application would be tabled because the respondent had not received all of the medical information regarding the complainant’s ability to perform his duties as a police officer.

 

9.      It is found that upon hearing the respondent’s declaration as described in paragraph 8 above, the complainant and his attorney left the meeting.

 

10.   It is found that after several motions and votes, an attorney for the respondent arrived at the August 9, 2005 meeting and the respondent moved and voted to convene in executive session to discuss “medical reports related to Chief William Abbatematteo’s request for a disability retirement.”

 

11.   It is found that during the executive session the respondent discussed the complainant’s medical condition in relation to his ability to perform his duties as police chief and affirmed its decision not to take any action or votes until all of the medical information had been provided to the respondent.

 

12.   It is found that the duration of the discussion, described in paragraphs 10 and 11, above, was no more than 15 minutes.

 

 

13.   At the hearing on this matter and in its brief, the respondent argued that because the complainant’s medical records were not subject to disclosure pursuant to §1-210(b)(2), G.S., and could not be disclosed under §1-214(c), G.S., the respondent properly convened in executive session pursuant to §1-200(6)(E), G.S.  The respondent also argued that the complainant and his attorney had notice in fact that it would discuss his pension application in executive session because the complainant had already objected to the disclosure of his medical records in response to a request by a local newspaper and thereby implied that he wanted discussions related to his medical records to remain confidential and discussed only in executive session.  The respondent also argued that at no time did the complainant or his attorney indicate in writing or verbally that he wanted the discussions regarding his pension application discussed in open session.

 

14.   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.”

 

15.   Section 1-225(f), G.S., states 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.

 

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

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; . . . and (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.”

 

17.   Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “ . . . [p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

 

18.   Section 1-214(c), G.S., provides in relevant part that:

 

A public agency which has provided notice . . . [of a request to inspect or copy records contained in any of its employees’ personnel or medical file] . . . shall disclose the records requested unless it receives a written objection from the employee concerned  . . .  within seven business days from the receipt by the employee . . . .  Upon the filing of an objection  . . .  the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206. 

 

19.   It is found that even though the respondent mentioned the complainant’s medical condition(s) during the course of the executive session discussion of the August 9, 2005 meeting, the focus of the discussion was not such conditions.

 

20.  It is concluded therefore that the respondent did not convene in executive session to discuss a matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of §1-210, G.S.,  within the meaning of §1-200(6)(E), G.S.

 

21.  It is found that the focus of the executive session discussion during the August 9, 2005 meeting was the respondent’s attorney formally updating the respondent on the status of the complainant’s disability application and the respondent affirming that it would take no action regarding such application until it received and reviewed all medical reports.  

 

22.   Notwithstanding the respondent’s argument, it is concluded that the respondent discussed the complainant’s “employment”, “performance”, “health” and “dismissal” within the meaning of §1-200(6)(A), G.S.

 

23.   At the hearing on this matter, the complainant argued that the respondent failed to give him notice of the executive session and denied him the opportunity to require that the discussion be held in open session.

 

24.   The Commission has previously concluded that in order for an employee to have an opportunity to require that a discussion of his employment be held at an open meeting, the public agency wishing to convene in executive session must provide such employee meaningful notice of such discussion.

 

25.   It is found that the respondent gave the complainant and his attorney the undeniable impression that it would not take up his pension application and the issues surrounding it at the August 9, 2005 meeting when such matter was tabled, and it is disingenuous, at best, to suggest that the complainant had notice that the respondent could, later, during that same meeting, discuss his pension application in executive session, as described in paragraphs 10, 11, and 12, above.

 

26.   It is found, therefore, that the respondent failed to provide meaningful notice to the complainant that his employment, performance, health or dismissal would be discussed at the August 9, 2005 meeting and thereby, denied the complainant the opportunity to require that those discussions be held at an open meeting.

 

27.   Consequently, it is concluded that the respondent violated §§1-225(a), G.S. and 1-200(6)(A), G.S.

 

28.   It is further found that, under the facts and circumstances of this case, even if §1-200(6)(E), G.S., was applicable, such would not negate the applicability of §1-200(6)(A), G.S., and it requirements.

 

29.   Accordingly, the respondent’s motion to dismiss this complaint is denied.

 

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

 

            1.  Henceforth the respondent shall strictly comply with the provisions of §§1-225(a) and 1-200(6)(A), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 2006.

 

________________________________

Petrea A. Jones

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:

 

William Abbatematteo

14 Mattabassett Drive

Meriden, CT 06450

 

Municipal Pension Board,

City of Meriden

c/o Carolyn W. Kone, Esq.

Brenner, Saltzman & Wallman LLP

21 Whitney Avenue

New Haven, CT 06511

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-394FD/paj/4/27/2006