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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #61 |
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Commissioner of Consumer Protection, Applicant |
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On January 9. 1985, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Commissioner of Consumer Protection.
In her letter of request, the applicant notes the enactment of P.A.84‑338. The public act, codified as Conn. Gen. Stat.§42‑181 et seg., directs the Department of Consumer Protection (hereinafter "the Department") to establish an arbitration program for the resolution of automobile warranty disputes. This program is part of the so‑called "Lemon Law." The applicant is concerned that the presence of the public at "Lemon Law" arbitration hearings might intimidate some people whom the program is designed to help.
The applicant therefore seeks the Commission's opinion as to whether the Department may limit the presence of observers at "Lemon Law" arbitration hearings and specifically in cases where the consumers wish to maintain their right to privacy.
The applicant's phrasing, however, begs the second part of the question presented. Clearly, if consumers have a right to privacy with respect to a certain kind of hearing, then that right must be protected. In such a situation, the applicant's suggestion of supplying non-personally identifying transcripts and other documents to those denied admittance is well taken.
In essence then, the basic question is whether the consumers have such a right to privacy or whether the Department's "Lemon Law" arbitration hearings are subject to the open meetings provisions of the Freedom of Information Act. To provide an adequate answer, it is first necessary to review the pertinent statutes.
To facilitate the "Lemon Laws" arbitration program, the applicant is mandated to establish and appoint the members of one or more three-member "automobile dispute settlement panels." Conn. Gen. Stat.§42-181(a). A person alleging violation of the "Lemon Law's" warranty provisions, as set forth in Conn. Gen. Stat.§42‑179, may have its complaint heard by one of these panels if the automobile manufacturer has not established an informal dispute settlement procedure certified by the Attorney General. Conn. Gen. Stat.§42‑181(b). The Department investigates the complaint and the applicant may issue subpoenas to compel attendance of witnesses and the production of documents at panel hearings. Conn. Gen. Stat.§42‑181(c). Each panel renders the decisions in the cases assigned to it and is empowered to impose certain enumerated remedies as it deems appropriate. Id. Nothing in the "Lemon Law" confers any right to privacy upon any person or otherwise provides for closed proceedings or records.
For purposes of the Freedom of Information Act, "meeting" is defined in relevant part as "any hearing or other proceeding of a public agency... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power." Conn. Gen. Stat.§1‑18a(b). It is the Commission's opinion that the "automobile dispute settlement panels" are public agencies. See Conn. Gen. Stat.§1‑18a(a). They are therefore subject to the Act's operative provisions concerning the conduct of meetings.
Conn. Gen. Stat.§1‑21(a) unequivocally states that "[t]he meetings of all public agencies, except executive sessions .… shall be open to the public." Conn. Gen. Stat.§1‑18a(e) sets forth the exclusive purposes for which an executive or closed session may be held. It appears to the Commission that none of these purposes applies generally to a "Lemon Law" arbitration proceeding conducted by a Department panel.
Moreover, the Commission is unaware of any other law that either provides for the confidentiality of panel proceedings or establishes a consumer's right to privacy with respect to such proceedings. To the contrary, as the Connecticut Supreme Court has noted, at the minimum, §1‑21 mandates that an administrative hearing, where evidence and argument are presented, be open to the public. Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190 (1984).
The Department's "Lemon Law" arbitration program is designed to provide an informal dispute settlement procedure in lieu of more formal court proceedings. Historically and constitutionally, courts are open forums, except in very limited circumstances, and the identities of parties and witnesses are generally a matter of public record. See Conn. Const., Art. First, §10. Consequently, in the absence of explicit legislation to the contrary, it is inconceivable that parties to a proceeding before an administrative body, such as a Department panel, would have greater rights to privacy than would be accorded in similar circumstances in the courts of this state
It is therefore the commission's opinion that the Department's "Lemon Law" arbitration hearings are subject to the open meetings provisions of the Freedom of Information Act. Furthermore, it is the Commission's opinion that public attendance may not be limited at such hearings, except in strict compliance with the provisions of Conn. Gen. Stat.§§ 1‑21 and 1‑18a(e) and 1‑21g and 1‑21h.
By Order of the Freedom of
Information Commission
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Judith A. Lahey, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Mary Jo
Jolicoeur
Clerk of the Commission