FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 30, 2007, 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)(A), G.S.

 

2.      It is found that by letter filed July 3, 2007, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by holding a secret meeting on or before January 4, 2007.

 

3.      It is found that the alleged violation occurred more than 30 days before the date of the complainant’s appeal to this Commission.

 

4.   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. 

 

5.      It is found that the complainant learned of the alleged secret meeting by reading a newspaper account on June 5, 2007.  It is found that on June 5, 2007, a local newspaper published a series of e-mails among members of the respondent that caused the complainant to believe that the respondent held a secret meeting.  It is found that the newspaper did not publish the e-mails prior to that date. (The complainant has not alleged any violation of the FOI Act with respect to the e-mails; therefore, they are not at issue in this matter.)

 

6.      It is found that the complainant filed his appeal within thirty days after receiving notice in fact, within the meaning of §1-206(b)(1), G.S., of such alleged meeting.

 

7.      It is concluded, therefore, that the Commission has jurisdiction to consider the complainant’s appeal in this matter.

 

8.      Section 1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies … shall be open to the public.”

 

9.   Section 1-200(2), G.S., defines “meeting” as:

 

…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…

 

10.  It is found that the respondent’s Ordinance Committee held a properly noticed meeting during the evening of January 4, 2007.  It is found that all the members of the respondent comprise the membership of the Ordinance Committee. It is found that four members constitute a quorum of the respondent and of the Ordinance Committee.   

 

11.  It is found that on the afternoon before the January 4, 2007 meeting, the chairperson of the respondent’s Ordinance Committee met with the mayor, who is a voting member of the respondent; another committee member; and either one or two attorneys for the respondent.  It is found that they discussed how to proceed in the most orderly and efficient manner at the upcoming meeting and how to conduct the meeting so that all members of the Ordinance Committee would have the opportunity to express their ideas and concerns in a meaningful way.

 

12. It is found that, following the afternoon discussion, described in paragraph 11, above, the chairperson of the Ordinance Committee prepared a “script” for use during the evening’s properly noticed public meeting of the Ordinance Committee.

 

13.  It is found that the chairperson prepared the script in an effort to keep the January 4, 2007 meeting “on topic” and to make sure that council members would have an opportunity to express their views on the agenda topics in an orderly manner.  It is found that the chairperson considered the script to be “simply an organizing document,” compiled in order to structure a productive and efficient public meeting. 

 

14.  It is found that the chairperson created the content of the script by incorporating the thoughts and ideas that other members of the respondent had communicated to her in one-to-one conversations about the topics on the agenda.  It is found that the chairperson also drew from discussions in previous public meetings.  It is found that the chairperson set the speaking order in the script according to the seating order of the members of the respondent.

 

15.  It is found that only two council members, who were present at the afternoon meeting, knew that the chairperson was preparing the script for the evening meeting.  It is found that the chairperson distributed the script to all the members of the respondent, except one, at the time of the meeting.  It is further found that the members did not strictly adhere to the script during the January 4, 2007 meeting.

 

16.  It is found that the chairperson did not share the script with one member of the respondent because she believed it would be counter-productive, in light of her experience that he had behaved with hostility toward her and other members of the respondent.  It is found that she testified that she wanted to avoid “another verbal barrage” by that member of the respondent.

 

17.  It is found that, although the chairperson collected the script at the close of the meeting, she provided copies of it upon request to local media.

 

18.  It is found that no polling, voting, or deliberation about a matter over which the respondent has supervision, control, jurisdiction or advisory power took place among a quorum of members of the respondent during the afternoon discussion of January 4, 2007, described in paragraph 11, above.  It is found that the afternoon discussion was not a “hearing or other proceeding,” of the Ordinance Committee, within the meaning of §1-200(2), G.S.

 

19.  It is found that the afternoon discussion with the mayor was not an assembly of a quorum.  It is found, therefore, that the afternoon discussion was neither a “convening or assembly of a quorum,” nor a “communication by or to a quorum” of the Ordinance Committee, within the meaning of §1-200(2), G.S.

 

20.   It is concluded that the afternoon discussion was not a meeting, within the meaning of §1-200(2), G.S., and that the afternoon discussion did not violate the open meeting provisions of §1-225(a), G.S.

 

21.  It is found that, although the respondent distributed the script to a quorum of the respondent prior to the public meeting on January 4, 2007, the council members did not discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power, within the meaning of §1-200(2), G.S., except during the public meeting on January 4, 2007.  It is concluded that the respondent did not violate the FOI Act by distributing the script and the members of the respondent did not violate the FOI Act when they received it prior to the January 4, 2007 public meeting.

 

22. It is found that a quorum of the respondent did not meet at any time to plan how to manipulate discussion at the January 4, 2007 public meeting in order to reach a pre-determined outcome on the merits of the topics under consideration at the meeting.  It is concluded that the respondent did not hold a secret meeting in violation of §1-225(a), G.S., of the FOI Act.

 

23.  Notwithstanding the Commission’s findings and conclusions in this matter, the Commission cautions that the chairperson’s use of the term, “script” and the level of detail that the script contains reasonably gave rise to the complainant’s suspicion of a secretly manipulated meeting and pre-determined decisions.  The Commission advises the respondent to re-evaluate such use of scripted procedure and discussion in public meetings.

 

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

 

1.      The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

J. Jay Meisinger

7 Mano Lane

Bristol, CT 06010

           

City Council,

City of Bristol

c/o John C. King, Esq.

Updike, Kelly & Spellacy, P.C.

One State Street

PO Box 231277

Hartford, CT 06123-1277

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-376FD/paj/12/20/2007