FIC2007-144

3. With respect to the portion of the complaint described in paragraph 2(a), above, it is concluded that the complainant has not alleged a violation of the FOI Act.

4. With respect to the allegation described in paragraph 2(b), above, it is found that the complainant made a February 13, 2007 request to the respondent first selectman’s executive assistant for all memos, emails and correspondence from December 15, 2006 through February 14, 2007 between the respondent first selectman, or the board of selectmen, and any of: Joanne Messner, Dianne Patterson, Suzanne Pascoe, or Jan Briscoe.

5. It is found that the executive assistant is, among his many other duties, the person unofficially designated to respond to FOI Act requests made to the respondents.

6. It is found that the executive assistant acknowledged the request on February 14, 2007, but did not provide any of the records until approximately five and one-half months later, despite numerous reminders by the complainant, including reminders on March 22, 2007, April 11, 2007, June 14, 2007, and July 18, 2007.

7. It is found that all of the requested records pertained to an employment discrimination grievance filed by the individuals named in paragraph 4, above, against the complainant.

8. It is found that the complainant communicated to the executive assistant his pressing need for the information.

9. With respect to the allegation described in paragraph 2(c), above, it is found that the respondent board convened in executive session at its October 11 and October 23, 2006 meetings.

10. It is found that the minutes of the October 11 and 23, 2006 executive sessions indicate that the respondent board convened in executive session to discuss personnel matters, and that several individuals were invited to attend.

11. With respect to the allegation described in paragraph 2(d), above, it is found that the October 11 and 23, 2006 executive sessions were convened to discuss employment discrimination complaints lodged against the complainant by the four individuals identified in paragraph 4, above.

12. It is found that the respondents did not notify the complainant that they intended to discuss his employment in executive session.

13. At the hearing, the complainant withdrew the portion of his complaint concerning the respondents’ failure to notify him that he would be discussed during the October 23, 2006 executive session.

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

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.

15. Although no jurisdictional issue was raised by the respondents, it is found that the complaint, or notice of appeal, in this matter was filed more than thirty days after the respondents’ October 11, 2006 executive session. Therefore, the Commission has jurisdiction over this portion of the complainant only if the meeting, or a portion of the meeting, was secret or unnoticed, within the meaning of §1-206(b)(1), G.S.

16. It is found that the agenda of the October 11, 2006 meeting indicates only that the respondent board intended to enter executive session to discuss personnel matters. The notice does not describe the nature of the personnel matters, or any individual that was to be discussed, or contain any other information reasonably apprising the public of the business to be transacted.

17. It is found that the minutes of the October 11, 2006 meeting reflect that the respondent entered into executive session to discuss personnel matters, remained in executive session for approximately three hours, and that Tim Oppenheimer, Susanne Pasco, Jan Briscoe and Diane Patterson (three of the four individuals identified in paragraph 4, above) all attended the executive session. The minutes do not reflect any action taken during or following the executive session.

18. It is concluded that neither the agenda nor the minutes contain any information reasonably apprising the public of the actual subject of the executive session portion of the meeting—which was essentially the entire meeting. Specifically, neither the agenda nor the minutes contain any reference to the respondents’ discussion of the complainant in executive session.

19. It is therefore concluded that the October 11, 2006 executive session was “secret or unnoticed” within the meaning of §1-206(b)(1), G.S.

20. It is found that the complainant did not have notice in fact of the subject matter of the October 11, 2006 executive session until February 23, 2007 at the earliest, when his inspection of the October 11, 2006 agenda and minutes apparently led him to conduct further inquiry concerning the executive session on that date.

21. It is therefore concluded that the Commission has jurisdiction to consider the complainant’s allegation that he was not given notice that he would be discussed in the October 11, 2006 executive session, or an opportunity to require that discussion to be conducted publicly.

22. Section 1-200(5), G.S., provides:

“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.

23. Section 1-210(a), G.S., provides in relevant part that:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

24. Section 1-212(a), G.S., provides: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

25. It is found that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

26. The respondent first selectman contends that the records were provided promptly, because of the other duties of his executive assistant, including preparation of the town budget; because he once reminded the executive assistant to provide the records “as soon as he could;” and because the executive assistant was interrupted, or forgot, or didn’t know what prevented him from giving access, or first had to put the records in chronological order, or had to segregate exempt records, or didn’t recall why the complainant sought the records, or didn’t believe that the complainant’s need was truly pressing.

27. The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission. In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. The Commission also gave the following guidance:

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act. Providing such access is therefore as much a part of their mission as their other major functions. Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority. Thus, it should take precedence over routine work that has no immediate or pressing deadline.

28. The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities: the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

29. It is found that the first selectman’s executive assistant disregarded the complainant’s expressed pressing need for the information, and substituted his own judgment as to whether the complainant had a pressing need for the requested records.

30. It is found that the executive assistant, during the time that he had failed to even partially fulfill the complainant’s request, found time to respond to requests for related information from the press and from the four individuals identified in paragraph 4, above.

31. Despite the respondent first selectman’s contention to the contrary, it is found that the requested records were primarily located in convenient locations, in a single file folder in the executive assistant’s office, and in a number of different folders in a secretary’s office. It is further found that the records located in the secretary’s office, comprising approximately half of the requested records, took approximately one month or less for the secretary to compile.

32. It is found that many of the reasons expressed by the executive assistant for his failure to promptly provide the requested records—that he was interrupted, that he forgot, that he didn’t know what prevented him from giving access, that he had to first put the records in chronological order, that he had to segregate exempt records, and that he didn’t recall why the complainant sought the records—are not credible, and additionally do not justify the five and one-half month delay in providing the records. It is specifically found that the respondent first selectman did not ultimately claim that any of the requested records were exempt from disclosure, or withhold any records on this basis.

33. It is concluded that the requested records were not provided promptly within the meaning of §§1-210(a) and 1-212(a), G.S.

34. With respect to the allegation described in paragraph 2(c), above, concerning the minutes of the respondent board’s meetings, it is found that the minutes of those portions of the October 11 and October 23, 2006 meetings convened to discuss the grievance filed against the complainant do not describe the actual business transacted, except to state that the purpose of the executive session was “to discuss personnel matters,” and to identify who was invited to attend other than the members of the respondent board.

35. Section 1-231(a), G.S., provides:

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

36. Section 1-210(a), G.S., provides in relevant part that “[e]ach such agency shall make, keep and maintain a record of the proceedings of its meetings.”

37. The respondents contend that there is no evidence that the complainant was discussed in executive session at the October 11, 2006 meeting, because the minutes show only that an executive session was convened “to discuss personnel matters.”

38. However, the respondents argument proves too much. The respondents may not, by concealing the purpose of their October 11, 2006 meeting, now contend that the purpose of the meeting cannot be determined because that purpose has been omitted from the minutes—minutes which are intended by the FOI Act to give the public notice of the respondents’ business. The Commission expressly rejects any argument that its factual findings are necessarily limited to the bare information provided in the minutes.

39. It is found that, by reasonable inference from the facts on the record, that during the two executive sessions, the respondents discussed the employment discrimination grievance filed against the complainant, necessarily including facts concerning the complainant’s employment and his treatment of, and by, the individuals identified in paragraph 4, above.

40. The respondents nonetheless contend that they are not required to keep minutes of their executive sessions beyond the requirements of §1-231(a), G.S., which provides in relevant part that “the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.”

41. While the respondents are correct that §1-231(a), G.S., requires disclosure of persons in attendance at executive sessions, §1-210(a), G.S., more broadly requires that an agency’s minutes in their entirety—not just the minutes of executive sessions—reasonably apprise the public of the business transacted at the meeting. Section 1-210(a), G.S., does not require the agency to disclose precisely what was discussed in executive session, but only to apprise the public in general terms—beyond the phrase “executive session for personnel matters”—of the subject matter of the business discussed. In this case, for example, the respondents’ minutes could at least have apprised the public that an employment discrimination grievance against the complainant was the subject matter of the executive session. Such a description would put the public—not to mention the complainant—on notice of what business the respondent board discussed, while leaving the respondent board free to keep the details of that discussion confidential.

42. It is found that the respondent board’s minutes, by failing to describe in any way the personnel matter discussed in executive session—such as the person discussed, or the grievance that had been filed, or the conduct at issue, or even the agency (Youth and Family Services) involved, for example—are insufficient to reasonably apprise the public of the business actually transacted at the meeting.

43. It is therefore concluded that the respondent board violated §1-210(a), G.S., by failing to keep and maintain a record of the proceedings of its meetings that reasonably apprises the public of the business actually transacted.

44. With respect to the allegation described in paragraph 2(d), above, it is found that the respondents did not give the complainant notice that his employment would be discussed in executive session or an opportunity to require that the session be conducted publicly.

45. Section 1-200(6)(A), G.S., provides that an agency may convene in executive session for “[d]iscussion 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.”

46. The respondents contend that they were not required to notify the complainant because the meetings involved strategy or negotiations with respect to collective bargaining, “as union members and their representatives were present.”

47. Section 1-200(2), G.S., provides in relevant part that meetings subject to the FOI Act do not include “strategy or negotiations with respect to collective bargaining.”

48. However, it is found that the respondents never treated or labeled their executive sessions as “strategy or negotiations with respect to collective bargaining” until compelled to justify their failure to notify the complainant of those closed sessions.

49. Moreover, it is found that the respondents failed to prove that the discussion in executive session concerned strategy or negotiations with respect to collective bargaining. The Commission expressly declines to reach a finding that collective bargaining negotiation occurred based solely on the presence of a collective bargaining representative at one of the two meetings, or the mere existence of a grievance. Moreover, the respondents offered no evidence to prove that either “strategy” or “negotiations” were discussed.

50. It is therefore concluded that the respondents violated §§1-225(a) and 1-200(6), G.S., by convening in executive session to discuss the employment, performance, evaluation or dismissal of the complainant without permitting the complainant an opportunity to require the discussion to be held at an open meeting.

51. With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

52. It is found that the respondent first selectman is the official directly responsible for the denial of the complainant’s right to receive copies of public records promptly upon request. Although the first selectman’s executive assistant was the custodian of some of the records, and the request was directed to him, he was at all times acting for the first selectman, whose records were requested, and it was the first selectman who was ultimately responsible to assure that the assistant provided the first selectman’s records promptly.

53. It is also found that the respondent first selectman is the official directly responsible for the denial of the complainant’s right to be notified of the board of selectmen’s intention to discuss the complainant’s employment in executive session, even if that responsibility is in some degree shared by the other two selectmen. In this regard, the Commission notes that the respondents concede in their October 11, 2007 brief that, normally, the first selectman would discuss personnel matters “on his own” in a staff or administrative meeting, but in this case, other board of selectmen participated in the meetings.

54. The respondent first selectman contends that a civil penalty is not warranted because he was not involved in the underlying grievance after January of 2007, because he had nothing to do with the complainant’s records request other than to remind his executive assistant of it, and because he did not sign or release the written reprimand issued to the complainant. He further contends that the complainant’s “dogged pursuit of a civil penalty” against him “must be explained by something other than [the first selectman’s] conduct in this matter.” Finally, the respondent first selectman contends that any violations of the FOI Act were “completely inadvertent and resulted from the unusually chaotic and difficult circumstances surrounding YFS during the time period in question, coupled with [the executive assistant’s] preoccupation with putting together a $30 million dollar budget, among other pressing tasks.”

55. It is concluded, however, that the first selectman’s lack of involvement after January of 2007 is not relevant to his conduct prior to that time: specifically, with reference to the failure to notify the complainant that he would be discussed in executive session in October 2006.

56. It is also concluded that the first selectman’s lack of involvement in the underlying labor dispute did not at any time excuse his failure to ensure that the executive assistant promptly fulfilled a records request for the first selectman’s correspondence.

57. Further, it is concluded that the violations of the FOI Act in this case were not inadvertent and may not be attributed solely to “unusually chaotic and difficult circumstances.”

58. Specifically, it is found that the respondent first selectman offered no justification for his failure to notify the complainant that the complainant’s employment would be discussed in executive session, other than the after-the-fact and unpersuasive argument that the discussion really concerned collective bargaining, and didn’t involve the complainant’s employment at all.

59. Additionally, it is found that the reasons given for the five and one-half month delay in providing any records to the complainant were not credible, and do not constitute reasonable grounds for such an extensive delay.

60. It is therefore concluded that the respondent first selectman’s denial of the complainant’s right to prompt copies of the first selectman’s correspondence, and of his right to be notified that his employment would be discussed in executive session, and of his right to require that discussion to be held in public, were without reasonable grounds.

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

1. Henceforth the respondents shall strictly comply with the requirements of

§§1-210(a), 1-212(a), 1-225 and 1-200(6)(A), G.S.

2. The respondent first selectman shall forthwith remit to the Commission a civil penalty in the amount of $100.00

Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 2008.

________________________________

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:

Larry Freundlich

Director

Youth and Family Services

322 Main Street

Old Saybrook, CT 06475

Michael Pace, First Selectman,

Town of Old Saybrook; and

Board of Selectmen,

Town of Old Saybrook

c/o Lisa S. Lazarek, Esq.

Kainen, Escalera & McHale, P.C.

21 Oak Street

Hartford, CT 06106

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2007-144FD/paj/3/3/2008

[1] At the hearing on the matter, the complainant clarified that he intended to refer to the respondent board’s October 11, 2006 meeting.

In the Matter of a Complaint by			FINAL DECISION
Larry Freundlich,
		Complainant
	against		Docket #FIC 2007-144
Michael Pace, First Selectman, Town of Old Saybrook; and Board of Selectmen, Town of Old Saybrook,
		Respondents	February 27, 2008