FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on April 9, 2007, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed December 5, 2006, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by conducting negotiation meetings in private.

 

3.  It is found that the respondent Winchester Board of Education (the “Board”) does not maintain its own high school, but provides education to high school age students residing within the town by designating The Gilbert School as the high school that Winchester students may attend.  The two respondents have entered into a series of written contracts in which the Board has agreed to pay the tuition of students residing in Winchester.

 

4.  It is found that subcommittees of the respondents met during the times relevant to this complaint for the purpose of negotiating a new contract.

 

5.  The complainants contend that the respondents privately met jointly or singly on October 25, November 1, November 6, November 14, November 20, and November 29, 2006.

 

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

 

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

 

“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;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; 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.

 

8.  With respect to the meetings of October 25 and November 1, 2006, §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 not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than 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. 

 

9.  It is found that the meetings of October 25 and November 1, 2006 were not secret or unnoticed.

 

10.  It is found that the complaint in this matter was filed later than thirty days after the October 25 and November 1, 2006 meetings.

 

11.  It is concluded that the Commission lacks jurisdiction to address any claim that the complainants were wrongfully denied the right to attend the October 25 and November 1, 2006 meetings, or that the respondents convened in executive session at those meetings.

 

12.  With respect to the November 6, 2006 meeting, it is found that the respondents met jointly on that date, but did not convene in executive session or otherwise close the meeting to the public.

 

13.  With respect to the November 14, 2006 meeting, it is found that the respondent Board of Education met on that date and convened in executive session for the stated purpose of the “work record of the school attorney.”

 

14.  It is found that, following the conclusion of the executive session, the Board defeated a motion to seek other counsel for the Gilbert negotiations and contract.

 

15.  The respondent Board contends that, with respect to the discussion concerning its counsel, the Board properly discussed his performance within the meaning of §1-200(6)(A), G.S.

 

16.  It is found, however, that the Board failed to prove that its counsel is a “public officer or employee” within the meaning of §1-200(6)(A), G.S.  It appears from the record that the Board’s counsel is a private law office.

 

17.  It is concluded that the Board violated §1-225(a), G.S., when it conducted the discussions described in paragraph 13, above, in executive session at its November 14, 2006 meeting.

 

18.  With respect to the November 20, 2006 meeting, it is found that the respondent board convened in executive session to consider draft documents that might serve as the basis for a final contract with The Gilbert School.

 

19.  Section 1-210(b)(1), G.S., provides that disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

 

20.  It is found that the chair of the respondent Board determined that the public interest in withholding the draft contractual documents clearly outweighed the public interest in disclosure.

 

21.  It is concluded that the draft contractual documents are public records that are exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

22.  It is found that conducting its discussion of the draft contractual documents in public would have resulted in the disclosure of those draft documents.

 

23.  It is therefore concluded that the respondent Board permissibly convened in executive session at its November 20, 2006 meeting pursuant to §1-200(6)(E), G.S.

 

24.  With respect to the November 29, 2006 meeting, it is found that the respondents met jointly on that date, but did not convene in executive session.

 

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 as to the respondent The Gilbert School Corporation.

 

2.  With respect to the meetings on October 25, November 1, November 6, November 20 and November 29, 2006, the complaint is dismissed as to the respondent Winchester  Board of Education.

 

3.  With respect to its meeting of November 14, 2006, henceforth the respondent Board shall strictly comply with the requirements 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 November 28, 2007.

 

 

________________________________

Wendy R.B. Paradis

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:

 

Russell Buchner

337 East Wakefield Boulevard

Winsted, CT  06098

 

Cheryl Bartley

337 East Wakefield Boulevard

Winsted, CT  06098

 

Judith Pavlak

130 Wallens Street

Winsted, CT  06098

 

Joseph Cadrain

200 Perchrock Trail

Winsted, CT  06098

 

David LaPointe

11 Hillside Avenue

Winsted, CT  06098

 

Carmelina Connole

18 Woodland Avenue

Winsted, CT  06098

 

The Gilbert School Corporation

c/o Donald W. Strickland, Esq.

Siegel, O’Connor, O’Donnell & Beck, PC

150 Trumbull Street

Hartford, CT  06103

 

Board of Education,

Winchester Public Schools

c/o Mark J. Sommaruga, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT  06105-4286

           

 

 

 

 

 

 

___________________________________

Wendy R.B. Paradis

Acting Clerk of the Commission

 

 

FIC/2006-644FD/wrbp/11/30/2007