FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was consolidated for hearing with Docket #FIC 2006-400, Paul Choiniere and the Day v. Norwich Hospital Subcommittee, Norwich Hospital Advisory Committee, Town of Preston; Docket #FIC 2006-413, Paul Choiniere and the New London Day v. First Selectman, Town of Preston; and Docket #FIC 2006-414, Robert Fromer v. Michael Sinko, Chairman, Hospital Advisory Committee, Town of Preston; Allyn Brown III, Roy Beauregard, Kent Borner, Robert Congdon, Sandy Ewing, Merrill Gerber, Gerald  Grabarek, Dan Kulesza, and Kristina Gregory, as members, Hospital Advisory Committee, Town of Preston; and Hospital Advisory Committee, Town of Preston. On September 29, 2006, the Rivers Alliance of Connecticut was granted status as an intervener in Docket #s FIC 2006-400, 2006-403, and 2006-413. All four consolidated matters were heard as contested cases on October 5, 2006, at which time the complainants and the respondent in the above captioned matter appeared and presented testimony, exhibits and argument on the complaint.

           

            Subsequently, Reports of Hearing Officer were considered by the Commission for all four consolidated cases on February 28, 2007, at which time a motion to adopt the Hearing Officer’s Reports failed by virtue of a 2-2 vote. The Commissioners then voted unanimously to remand the matter to a staff member to draft an alternative, unsigned report.  Thereafter, Proposed Final Decisions on all four consolidated cases were considered by the Commission on July 25, 2007, at which time the Commission voted to remand the matters again to a staff member to draft alternative, unsigned reports. The Commission specifically directed staff to re-examine the respondents’ claims of exemption pursuant to §1-210(b)(7), G.S.

 

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)(A), G.S.

2.  By letter dated and filed with the Freedom of Information Commission (“Commission”) on August 10, 2006, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information Act by holding an illegal executive session during its regular meeting at 7 p.m. on August 9, 2006.  The complainants requested that the Commission order that all public records distributed or discussed during the illegal executive session be ordered subject to mandatory disclosure. 

 

3.  Section 1-200, G.S., states in relevant part:

 

(5)  “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

(6) “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes: … (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.

 

4.  Section 1-210(b), G.S., states in relevant part:

 

(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of: … (7) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision ….

 

5.  Section 1-225(f), G.S., provides in relevant part:

 

   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.

 

6.  It is found that the respondent created a Norwich Hospital Subcommittee that consisted of members of the respondent (“subcommittee”).

 

7. It is also found that the Town of Preston had contracted on November 2, 2005 to acquire the property known as the Norwich State Hospital from the State Department of Public Works (“DPW”).  Pursuant to that agreement, the Town would be responsible for any and all liabilities, costs and expenses arising from the need to clean up or to remediate pollution on, at, beneath or emanating from the property.  (DPW had conducted a Phase I and Phase II environmental assessment of the property, which indicated the presence of “certain environmental conditions” on the property.) 

 

8.  It is further found that the Town also entered into a development agreement for the property with Utopia Studios Ltd. (“Utopia”).  Utopia hired Earth Tech, an environmental consulting firm, to conduct a Phase III environmental assessment of the property to determine the nature of pollution there, the methods needed to get it cleaned up and the extent of hazardous materials found in the vacant buildings on the hospital campus, including lead paints, mold and asbestos.   Earth Tech also committed to delivering, no later than September 21, 2006, the Phase III assessment to the Town, at no cost to the Town.  It is not apparent that the Town provided any consideration to Earth Tech for this commitment.

 

9.  It is further found that the Town had its own environmental firm, GZA GeoEnvironmental, Inc. (“GZA”), and that Earth Tech representatives were eager to meet with GZA representatives to give them a progress report on Earth Tech’s Phase III environmental assessment at Earth Tech’s office in Concord, Massachusetts.  Earth Tech first contacted the Town on August 3, 2006, and a meeting was ultimately arranged on Tuesday, August 8, 2006 to take place the next day.  Although the meeting was originally conceived as a meeting between Earth Tech and GZA, by 1 p.m. on Tuesday, August 8, 2006, more than a quorum of the subcommittee also wished to attend, because of the possibility that representatives of Utopia would attend.  Rather than delaying the meeting, a decision was made to post a notice for an emergency meeting.

 

10.  It is further found that the subcommittee held a so-called emergency meeting at mid-day on August 9, 2006 with Earth Tech and GZA (see Docket #FIC 2006-400, Paul Choiniere and the Day v. Norwich Hospital Subcommittee, Norwich Hospital Advisory Committee, Town of Preston). 

 

11.  It is further found that a regular meeting of the respondent was convened at 7:00 p.m. on Wednesday, August 9, 2006, and that the purpose of the meeting was for the subcommittee to brief the respondent as a whole concerning the content of the oral report that Earth Tech had given the subcommittee that afternoon.

 

12.  It is further found that a draft of the minutes for the August 9, 2006 regular meeting of the respondent, which were filed with the town clerk on August 15, 2006, stated that “the information on the environmental cleanup is subject to confidentiality according to their contract with DPW (Department of Public Works) and the Committee will be going into Executive Session...to discuss today’s informational briefing.”  

 

13.  It is further found that, prior to their adoption at the August 16, 2006 regular meeting of the respondent, the minutes for the August 9, 2006 meeting were amended to state that the August 9, 2006 executive session was “for the purpose of discussion of public records or information relating to the contents of real estate evaluations made by the Town of Preston relative to the acquisition of property….”

 

14.  The respondent contended at the hearing on this matter that the executive session was permitted pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S., because discussion of Earth Tech’s findings concerning environmental contamination would have resulted in the disclosure of information relating to the contents of real estate evaluations.

 

15.  It is also concluded that the respondent failed to prove that §§ 1-200(6)(E) and 1-210(b)(7), G.S., apply.

 

16.  It is found that the maps at issue in this case essentially showed and/or detailed the locations of environmental contamination.

 

17.  It is also found that the respondents failed to prove that the maps at issue in this case, as described in paragraph 16 above, constituted “real estate appraisals” or “engineering or feasibility estimates and evaluations” within the meaning of §1-210(b)(7), G.S.

 

18.  It is further found that the respondent failed to prove that the maps at issue in this case were “made for” the Town, as required for the application of §1-210(b)(7), G.S., since: Earth Tech contracted with Utopia and not the Town; the Town had hired its own environmental consultants; and Earth Tech’s commitment to provide the Town with the Phase III evaluation appears to have been simply a unilateral promise by Earth Tech.   Indeed, the respondent failed to prove that the maps at issue were ever delivered to the Town.

 

19.  It is therefore concluded that the maps at issue are not exempt from disclosure pursuant to §1-210(b)(7), G.S., and that the executive session was not permissible pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S.

 

20.  It is further concluded that the respondent violated the open meeting provisions of §1-225(a), G.S., by convening an executive session for a purpose not authorized under §1-200(6), 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 respondent shall not convene in executive session, unless such executive session is explicitly authorized pursuant to the provisions of §1-200(6), G.S.

 

2.  If the respondent has not already done so, it shall provide the complainants with the maps at issue herein, that were discussed during the August 9, 2006 regular meeting executive session, at no charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

________________________________

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:

 

Paul Choiniere and the Day

c/o John Jay Pavano, Esq.

Faulkner & Boyce, P.C.

216 Broad Street

PO Box 391

New London, CT 06320

 

Norwich Hospital Advisory Committee,

Town of Preston  

c/o Henry J. Zaccardi, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

Rivers Alliance of Connecticut

c/o David Bingham

PO Box 1797

Litchfield, CT 06759

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-403FD/paj/8/8/2007