FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 19, 2010, 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), G.S.

 

2.      By letter dated May 28, 2010 and filed June 1, 2010, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI Act”) in the following way:

a.       the respondent held a special meeting on Wednesday, May 19, 2010, but the notice and the agenda for this particular special meeting stated that the meeting would occur on “Tuesday,” May 19, 2010;

b.      the respondent held an executive session during the improperly noticed May 19, 2010 special meeting described in paragraph 2.a, above;

c.       the respondent did not timely file its May 11, 2010 regular meeting minutes with the Oxford Town Clerk’s Office or on the Board of Education’s website; and

d.      the respondent denied the complainant’s request for a copy of a legal opinion, which opinion was discussed in the respondent’s May 19, 2010 executive session.

 

3.      In addition, in the complaint, the complainant requested that the Commission declare null and void all business conducted at the May 19, 2010 special meeting. 

4.      At the start of the contested case hearing, the complainant withdrew her complaint with regard to her request for the legal opinion described in paragraph 2d, above.

5.      As of October 1, 2010, §1-225(a), G.S., provides as follows:

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken.  Not later than seven days after the date of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency's Internet web site, if available, except that no public agency of a political subdivision of the state shall be required to post such minutes on an Internet web site.  Each public agency shall make, keep and maintain a record of the proceedings of its meetings. (Emphasis supplied).

6.      Prior to October 1, 2010, §1-225(a), G.S., provided as follows:

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken. Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency's Internet web site, if available. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.  (Emphasis supplied). 

 

7.      Section 1-225(d), G.S., provides, in relevant part, as follows: 

 

Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency.  The secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; . . . .  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. . . .

8.      The complainant testified that she did not attend the May 19, 2010 special meeting because she read the notice for the meeting online and noticed that it indicated that meeting was scheduled for “Tuesday.” The complainant further testified that she did not read further to see that the meeting date was noted as May 19, 2010, which was a Wednesday.  Finally, the complainant testified that she had a conflict that prevented her from attending the meeting on Tuesday. 

9.      It is found that the respondent Board timely posted a notice and an agenda for its May 19, 2010 special meeting.  However, it is found that, in the posting, the respondent Board mistakenly indicated that May 19, 2010 was a Tuesday, instead of a Wednesday.  The respondent testified that it is very likely that a clerical person reused a previous notice, changing the date, but overlooking to correct the day.  It is found that there is no evidence that the respondent intentionally wanted to mislead the public with regard to when this particular special meeting was going to occur.  Overall, it is found that all of the information on the special meeting notice other than the day—to wit, the time, place and reason for the special meeting, was correctly posted.  It is found that the respondent’s mistake is properly deemed a clerical error, which does not rise to the level of an FOI violation.

 

10.  With regard to the executive session, it is found that, other than the clerical error, the respondent’s executive session was properly noticed and convened.  It is further found that the executive session was convened for a proper purpose.  The complainant testified that her concern with the executive session was that it occurred at a meeting that was mistakenly described as a “Tuesday” when it was in fact a Wednesday.  It is found that, in order to find that the respondent engaged in an illegal or improper executive session, this Commission would have to elevate form over substance.  The Commission is not willing to engage in such a hyper-technical reading of the FOI Act. 

 

11.  With regard to the availability of the May 11, 2010 meeting minutes, the respondent conceded that, at the time that these minutes were due to be posted, the electronic posting requirements, as cited in paragraph 6, above, were applicable.  The respondent further conceded that it failed to post the May 11, 2010 meeting minutes in a timely fashion on its website.  It is further found that there is no current requirement that the respondent’s post its meeting minutes on its website. 

 

12.  It is further found that the respondent Board maintains its own office.  It is found, however, that neither party had any evidence with regard to whether the minutes for the May 11, 2010 meeting were available in the respondent Board’s office with seven days, pursuant to §1-225(a), G.S.  It is further found that the complainant did not contact the respondent to request that it forward her a copy of the meeting minutes or to inform the Board that it had failed to post its minutes on its website. 

 

13.    It is found the respondent’s failure to post the May 11, 2010 meeting minutes on its website was a technical violation of the FOI Act at the time the failure occurred. 

 

Based on the facts and circumstances of this case, no order by the Commission is hereby recommended. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 2011.

 

 

 

__________________________

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:

 

Nancy J. Schmitt

13 Reality Road

Oxford, CT  06478

 

Board of Education, Oxford Public Schools

c/o Michael P. McKeon, Esq.

Sullivan, Schoen, Campane & Connon LLC

646 Prospect Avenue

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-341/FD/cac/5/4/2011