FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 26, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

Prior to the hearing in this matter, the respondents moved to remove certain named parties as respondents, referring to the initial caption on this complaint.  In response, the complainant filed an objection to such motion on October 30, 2009.  On February 10, 2010, the hearing officer issued to the parties a Notice of the Issues in the Complaint and Redesignation of the Parties.  Such Notice stated:

 

The specific issues in the complaint over which the Commission has jurisdiction are: the adequacy of the notice for the August 3, 2009 special meeting of the Water Pollution Control Authority; and the adequacy of the notice for the August 18, 2009, special meeting of the Selection Committee of the Water Pollution Control Authority, as well as the appropriateness of entering executive session at such August 18, 2009, special meeting. 

 

            Neither the complainant nor the respondents filed a motion to reconsider such Notice prior to the hearing in this matter.   

 

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 dated and filed with the Commission on August 19, 2009, the complainant appealed to the Commission, alleging that:

 

a.  the respondent Authority violated the Freedom of Information (“FOI”) Act by failing to provide adequate notice of its meeting of August 3, 2009;

 

b.  the respondent Committee violated the FOI Act by failing to provide adequate notice of its meeting of August 18, 2009; and

 

c.   the respondent Committee violated the FOI Act by inappropriately entering an executive session at its meeting of August 18, 2009.[1]

 

            The complainant requested that civil penalties be imposed against the respondent officials; that the business conducted at the August 3rd and August 18^th meetings be declared null and void; and that the respondents be ordered not to go into executive session until they discuss “the situation” with the Public Education Officer of the Commission. 

 

3.  Section 1-225(d), G.S., provides:

 

[n]otice of each special meeting of every public agency…shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the…[town] clerk…. The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency….”

 

4.  With respect to the allegation described in paragraph 2.a, above, it is found that the respondent Authority conducted a special meeting on August 3, 2009.  It is further found that the respondent Authority timely filed notice of such meeting with the Town Clerk of the City of Stamford on July 30, 2009.

 

5.  It is found that the notice for the Authority’s August 3, 2009 meeting correctly announces the date and time of the meeting and states:

 

1.  Discussion and Vote: Project Definition Agreement between Nexterra Energy and Stamford WPCA.

 

6.  It is found that, at the August 3, 2009 meeting of the Authority, the respondent Barnes gave a presentation regarding the agreement, the members of the Authority then discussed the agreement, and finally, the members voted on the agreement.

 

7.  It is found that the notice set forth in paragraph 5, above, adequately specified the date, time, and business to be transacted at such meeting, within the meaning of §1-225(d), G.S.

 

8.  It is concluded that the respondents Barnes, Dennies, and Authority did not violate the FOI Act, as alleged in paragraph 2.a, above. 

 

9.  With respect to the allegation described in paragraph 2.b, above, it is found that, by email dated August 10, 2009, the complainant inquired of the respondent Brown whether the respondent Committee would be meeting the following day, August 11, 2009.  It is found that the respondent Brown replied to the complainant by return email dated August 10, 2009, and stated that the Committee would not meet on August 11, 2009, but rather would meet on August 18, 2009, to conduct interviews for an independent consultant.

 

10.  It is found that, on August 14, 2009, the respondent Committee filed notice of its August 18, 2009 special meeting with the Town Clerk of Stamford.  Such notice announces that the meeting would be held at 4:30 p.m. and states:

 

1.  Discussion: Results of Interviews for RFP 515 & 516 and Selection of Consultant(s)

 

2.  Discussion: Contract Terms.

 

11.   It is found that the respondent Committee had scheduled interviews of RFP applicants for the morning of August 18, 2009, but did not believe that such interviews constituted a meeting under the FOI Act.  It is found that the respondent Committee had planned to meet in the early morning of August 18, to interview applicants all day, and then to meet in public at 4:30 PM to discuss the interviews, as described in paragraph 10, above. 

 

12.  However, it is found that, on the morning of August 17, 2009, the respondent Brown consulted with an attorney in the Law Department for the City of Stamford and determined that the interviews described in paragraph 11, above, should be noticed as a public meeting.

 

13.  It is found that, on the morning of August 17, 2009, the respondent Committee prepared and filed with the Town Clerk a revised notice of its August 18, 2009 special meeting.  Such notice announces that the meeting would be held at 8:15 a.m. and states:

 

1.  Executive Session: It is anticipated that the committee will go into Executive Session to discuss the responses to RFP 515 & 516 with the responding firms/companies.

 

2.  Discussion: Results of Interviews for RFP 515 & 516 and Selection of Consultant(s)

 

3.  Discussion: Contract Terms.

 

14.  It is found that the complainant was in receipt of the revised notice, described in paragraph 13, above, on August 17, 2009, and that she attended the August 18, 2009 meeting. 

 

15.  At the hearing in this matter, the respondent Committee stipulated that the revised notice was filed late with the Stamford Town Clerk at approximately 10:00 a.m. on August 17, 2009.  It is found that the August 18, 2009 meeting convened at 8:27 a.m.  

 

16.  Based on the findings in paragraphs 13 and 15, above, and the findings in paragraphs 20-23, below, it is found that the revised notice described in paragraph 13, above, adequately specified the date, time and business to be transacted at the August 18, 2009 meeting of the respondent Committee, within the meaning of §1-225(d), G.S.  However, it is concluded that the respondent Committee violated §1-225(d), G.S., by filing such notice approximately ninety minutes late.[2]  

 

17.  Section 1-225, G.S., provides, in relevant parts:

 

(a) [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….”

 

(f)  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 

 

18.  Section 1-200(6), G.S., defines “executive session” to include:

 

…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….

 

19.  Section 1-210(b)(24), G.S., exempts from mandatory disclosure:

Responses to any request for proposals or bid solicitation issued by a public agency or any record or file made by a public agency in connection with the contract award process, until such contract is executed or negotiations for the award of such contract have ended, whichever occurs earlier, provided the chief executive officer of such public agency certifies that the public interest in the disclosure of such responses, record or file is outweighed by the public interest in the confidentiality of such responses, record or file.

20.  With respect to the allegation described in paragraph 2.c, above, it is found that, at the outset of the August 18, 2009 special meeting of the respondent Committee, members moved and seconded to enter into executive session to discuss records that the Committee possessed related to the interview process.  It is found that the floor was then opened for questions, and that the complainant, who was in attendance, objected to the motion to enter executive session.  It is found that Michael Toma, an attorney for the City of Stamford, stated that the executive session was proper, since an open session would result in the disclosure of records or information protected by §1-210(b)(24), G.S.  It is found that the complainant then contended that since the RFP responses had been made public, an executive session was inappropriate. 

 

21.  It is found that Mr. Toma then replied that not only RFP responses but also other records related to the RFP process may be protected from disclosure until the contract is awarded, if the chief executive officer of the agency certifies that the public interest in disclosure of the records is outweighed by the public interest in confidentiality of such records.  It is found that the respondent Brown, the chief executive officer of the Authority submitted a signed certification as part of the minutes.  Such certification states in relevant part:

 

            As the chief executive officer of the Stamford Water

            Pollution Control Authority, I herby certify that the

            public interest in the disclosure of the records or files made

            and/or possessed by the Stamford Water Pollution Control

            or any of its committees, in connection with the contract

            award process relating to RFP 515 and RFP 516, is outweighed

            at this time by the public interest in the confidentiality of

            such records or files, in that the process of selecting the most

            qualified vendor(s), negotiating with such vendor(s) and

            contracting with such vendor(s) would be compromised by

            early disclosure of such records or files, to the detriment of

            the City of Stamford.

 

22.  It is found that the Committee then unanimously voted to enter executive session.  It is found that interviews were conducted with seven companies during the executive session.

 

23.  It is found that, at 4:34 PM, the executive session ended and the public, including the complainant, was invited back into the room.  It is found that the members of the respondent Committee then deliberated in public regarding the interviews and that, after much discussion, the members reviewed the numerical scores generated during the interviews.  After further discussion, the members unanimously voted to adjourn the meeting at 5:35 p.m. and to schedule another meeting of the Committee in the following week.

 

24.  The complainant contends that §1-210(b)(24), G.S., does not apply to the records discussed during the executive session because the responses to the RFPs had been made public prior to such session, because the interview questions were allegedly prepared by non-Committee members, and because the questions are general in nature. 

 

25.  However, it is found that, during the executive session on August 18, 2009, members of the respondent committee discussed written questions for interviewees that had been prepared for the Committee.  It is also found that such questions were used and relied upon by the Committee during the executive session.  By reasonable inference, it is found that such records constitute records or files made by a public agency in connection with the contract award process, within the meaning of §1-210(b)(24), G.S.  It is further found that such discussion occurred before the contract at issue was awarded.  It is also found that the chief executive officer of the agency certified that the public interest in disclosure of such records or files is outweighed by the public interest in confidentiality of such records or files.

 

26.  It is concluded that records described in paragraph 25, above, were exempt from mandatory disclosure by virtue of §1-210(b)(24), G.S., at the time of the August 18, 2009 executive session.

 

27.  It is further concluded that the August 18, 2009 executive session was permissible since, if held in the open, the discussion therein would have resulted in the disclosure of exempt public records, within the meaning of §1-200(6), G.S.  Accordingly, it is further concluded that the respondent Committee did not violate the FOI Act, as alleged in paragraph 2.c, above. 

 

            28.  On brief, the complainant contends that she alleged in her complaint: 

           

Mr. Barnes, the Chairman of the WPCA Board, conducts unnoticed conference call meetings for the WPCA Board Members.

 

1.      At least six WPCA Board members participated in the secret meetings where the Selection Committee members were appointed.

 

2.      The six WPCA Board members are (a) Tim Curtin, (b) Alan Barnett, who apparently resigned from the Selection Committee; (c) Messrs. Boccuzzi and Casale, the two Board members added at the last minute to increase the number of Selection Committee members from 5 to 7; and (d) Board members Ms. Dennies and Mr. Barnes were represented on the Committee by Peter Privitera and Ms. Domizano, respectively.

 

            29.  In fact, insofar as the complaint addressed the issue of conference call meetings, it stated the following:

 

Following the recent WPCA rate increase public meeting, two board members admitted that Mr. Barnes, the Chairman of the WPCA, holds unnoticed conference call meetings for WPCA Board members.  These conference call meetings are a clear violation of the FOLIA (sic).  These illegal meetings also explain why the Board meetings in the City of Stamford always appear to be well orchestrated and rehearsed stage plays. 

 

            30.  The actual allegation, set forth in paragraph 29, above, contains no specifics regarding dates of any alleged unnoticed meetings, no specifics on the participants in such alleged meetings, no specifics regarding the subject matter of any such alleged meetings, and no specifics on the date the complainant received notice in fact of any such alleged meetings.

 

            31.  Due process requires that respondents in a contested case be given notice of specific allegations made against them.  As set forth in the second introductory paragraph in this decision, well before the hearing in this matter the hearing officer notified the parties of the issues which would be addressed at the hearing.  Such notice was again provided to the parties in the Order to Show Cause in this matter. 

 

            32.  Accordingly, the allegations set forth in paragraphs 28 and 29, above, will not be further addressed by the Commission.

 

            33.  On brief, the complainant also requests the addition of parties and imposition of sanctions against such parties.  However, the notice described in paragraph 31, above, also established the respondents in this matter.  See also §1-21j-30, Regulations of Connecticut State Agencies (Commission designates parties in contested cases).  The Commission denies the complainant’s request to add party respondents.

 

            34.  On brief, the complainant adds new allegations as follows: that the notices for the August 3 and August 18 meetings, although filed with the City Clerk, were not posted by the City Clerk of Stamford; that the revised minutes for the August 18 meeting have not been posted on the respondents’ website; that the respondents discussed matters outside the scope of the executive session during such session; that the respondents permitted a non-Committee member to execute the certification; that the respondents failed to disclose executive session notes after such session; that the respondents allowed non-Committee members to attend the executive session; and that the minutes of the August 18 meeting did not identify all in attendance at such meeting. 

 

            35.  The Commission will not address the allegations described in paragraph 34, above, since such allegations were not fairly raised in the complaint.

 

            36.  Based upon the facts and circumstances of this case, the Commission declines to consider the imposition of penalties requested by the complainant, as described in paragraph 2, above.   

 

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

 

1.  Henceforth, the respondent Committee shall strictly comply with the notice provisions of §1-225(d), G.S.

 

2.  The complaint is dismissed with respect to the respondents Brown, Barnes, Dennies, and Authority. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 14, 2010.

 

 

____________________________

Cynthia A. Cannata

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:

 

Karen Murphy

68 Saddle Rock Road

Stamford, CT  06902

 

Benjamin Barnes, Chairman, Water Pollution Control Authority, City of Stamford; Sandra Dennies, Member, Water Pollution Control Authority, City of Stamford;

Water Pollution Control Authority, City of Stamford; Jeannette Brown, Member, Selection Committee, Water Pollution Control Authority, City of Stamford; and Selection Committee, Water Pollution Control Authority, City of Stamford

c/o Michael S. Toma, Esq.

Corporation Counsel’s Office

City of Stamford

888 Washington Boulevard

P.O. Box 10152

Stamford, CT  06094

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-480/FD/cac/7/15/2010