FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
John P. Reilly and The Hour,
against Docket #FIC 95-222
Norwalk Fair Rent Commission,
Respondent June 12, 1996
The above-captioned matter was heard as a contested case on January 30, 1996, at which time the complainants 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 1-18a(a), G.S.
2. By letter dated June 20 and filed June 22, 1995, supplemented by letter dated July 6 and filed July 11, 1995, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information ("FOI") Act by improperly convening in executive session on January 1, February 4, February 15, March 15, May 16, June 14 and June 21, 1995.
3. It is found that the Commission has jurisdiction only with respect to the allegations concerning the June 14 and June 21, 1995 meetings. Consequently, the complaint is dismissed with respect to the complained of January - May 1995 meeting dates.
4. It is found that on June 14 and June 21, 1995, the respondent convened in executive session to deliberate on a matter pending before it, Dreamy Hollow Cooperative Apartments, Inc. v. Dreamy Hollow Apartments Co. (hereinafter "case #1158"), which had previously been heard on four separate hearing dates in May 1995.
5. The respondent claims that the executive sessions were appropriate under 1-18a(e)(2), G.S., because the respondent is defending a separate legal action pending in Stamford Superior Court, challenging its jurisdiction to hear case #1158.
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6. Section 1-21(a), G.S., provides, in pertinent part:
"The meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public."
7. Section 1-18a(e)(2), G.S., permits an executive session to discuss:
"strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled." [Emphasis added.]
8. It is found that the respondent is a party to the pending litigation referenced in paragraph 5, above, Dreamy Hollow Apartments Co. v. Fair Rent Commission of the City of Norwalk, CV 95 0144471 S, and that in April 1995, a request for preliminary injuction, seeking to prevent the respondent from hearing case #1158, was denied.
9. It is found, however, that the respondent did not convene in executive session to discuss its strategy as a party to the pending litigation described in paragraphs 5 and 8, above, but rather to deliberate on case #1158 as an adjudicator.
10. It is concluded that the respondent's executive sessions on June 14 and 21, 1995, were not authorized by 1-18a(e)(2) and 1-21(a), G.S.
11. The respondent also claims that the executive sessions were properly convened to formulate a preliminary draft of its decision in case #1158.
12. Section 1-18a(e)(5), G.S., permits an executive session for:
"discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19."
13. Section 1-19(b)(1), G.S., permits the nondisclosure of:
"preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."
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14. However, 1-19(c), G.S., further provides:
"Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of the public agency, which is subject to revision prior to submission to or discussion among members of such agency..." [Emphasis added.]
15. It is found that the respondent's deliberations on case #1158 constitute part of the process by which governmental decisions are formulated.
16. It is further found that an item which is the subject of discussion among agency members does not constitute a preliminary draft within the meaning of 1-19(b)(1) and 1-19(c), G.S.
17. It is therefore concluded that 1-18a(e)(5) and 1-19(b)(1), G.S., do not authorize the respondent to convene in executive session for the purpose of deliberating and drafting a decision on the matter in question.
18. The respondent also claims that 39-7J of the Norwalk Code authorizes the respondent to convene in executive session to deliberate on a pending matter.
19. It is concluded that this municipal ordinance does not supersede, or provide an exemption to, the open meeting requirements of the FOI Act.
20. The respondent further maintains that 4-181(b), G.S., authorizes non-public communication between agency members.
21. Section 4-181(a), G.S., prohibits ex parte communications between a hearing officer and a party to a contested case, and 4-181(b), G.S., permits agency members and employees to communicate with one another, so long as none of them have received a prohibited communication as defined in subsection (a).
22. It is concluded that 4-181(b), G.S., does not provide an exemption to the open meetings requirements of the FOI Act.
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23. The respondent also maintains that it was authorized to meet in executive session because it was acting as a quasi-judicial body, conducting jury-type deliberations and because it must consider the income of the tenant and possible retaliation by the landlord.
24. It is concluded that the policy arguments cited by the respondent do not provide an exemption to the open meetings requirements of the FOI Act.
25. It is therefore concluded that by meeting in executive session to deliberate on case #1158, the respondent violated 1-18a(e) and 1-21(a), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the requirements of 1-18a(e) and 1-21(a), G.S., with respect to executive sessions.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 12, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-222 Page 5
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:
John P. Reilly
346 Main Avenue
Norwalk, CT 06851
Norwalk Fair Rent Commission
c/o Sara L. Oley, Esq.
Assistant Corporation Counsel
P.O. Box 798
Norwalk, CT 06856-0798
Elizabeth A. Leifert
Acting Clerk of the Commission