Freedom of Information Commission
of the State of Connecticut
In the Matter of a Complaint by Final Decision
Sydney M. Libby,
against Docket #FIC 95-257
Middletown Jobs Loan Advisory Board,
Financial Review Subcommittee,
Respondent July 10, 1996
The above-captioned matter was heard as a contested case on January 30, 1996, 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. By letter dated July 31, 1995, and filed August 2, 1995, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening in executive session for an improper purpose, and by permitting a non-agency member to attend the executive session. The complainant requested the imposition of civil penalties against the respondent.
2. It is found that the complained of executive session was not convened by the named party respondent, the Middletown Jobs Loan Advisory Board (hereinafter “the board”), but rather by its financial review subcommittee, which is wholly comprised of members of the board. Consequently, the financial review subcommittee is substituted for the board as party respondent.
3. The respondent is a public agency within the meaning of §1-18a(a), G.S.
4. It is found that the board is a committee comprised of fifteen members, including bankers and business people, whose function is to evaluate and make recommendations to the Middletown common council concerning loan applications made to the city.
5. It is found that the respondent is a committee of the board, which is comprised of three members and one alternate, who are also members of the board, and whose function is to make recommendations to the board concerning the financial status and creditworthiness of applicants for loan assistance from the city.
6. It is found that on July 10, 1995, the respondent convened in executive session for 47 minutes prior to the board’s regular meeting to discuss financial information submitted by Sohil Electronic Industries, Inc. (hereinafter “Sohil”) in connection with a loan application, which the respondent claims was proper under §§1-18a(e)(5) and 1-19(b)(5), G.S.
7. Section 1-18a(e)(5), G.S., authorizes a public agency to convene in executive session to discuss “any matter which would result in the disclosure of records or the information contained therein described in subsection (b) of section 1-19.”
8. Section 1-19(b)(5), G.S., in turn, permits the nondisclosure of “trade secrets … and commercial or financial information given in confidence, not required by statute.”
9. It is found that Sohil’s loan application submitted to the board contains financial information given in confidence, including income tax returns and existing debt information.
10. It is further found that the board’s guidelines require the submission of the financial information described in paragraph 9 above; however, there is no evidence that such information is required by statute to be submitted to the board.
11. It is further found that the board maintains the names of loan recipients, loan amounts, and current repayment status in a record separate from the applications, which record is available for public inspection.
12. It is concluded that the financial information contained in Sohil’s loan application is permissibly exempt from disclosure under §1-19(b)(5), G.S.
13. It is found that the respondent convened in executive session to discuss and receive testimony and opinion concerning the financial information submitted by Sohil in its loan application.
14. It is concluded that the respondent convened in executive session for a proper purpose under §§1-18a(e)(5) and 1-19(b)(5), G.S.
15. It is found that the July 10, 1995 executive session, described in paragraph 6, above, was attended by the three members and one alternate member of the respondent, as well as non-agency members William Kuehn, Jr., Miriam Wood, Surendra Patel, S. Einhorn and D. Shirtcliff.
16. Section 1-21g(a), G.S., provides, in pertinent part:
“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 …”
17. It is found that Surendra Patel is the president of Sohil, D. Shirtcliff is employed by Sohil, and that S. Einhorn is a prospective employee of Sohil, who could be hired if the jobs loan application made to the city were approved.
18. It is found that Patel, Einhorn and Shirtcliff were invited by the respondent into its executive session for the purpose of providing testimony in support of the loan application, including testimony concerning Sohil’s projected sales figures and additional revenue required to sustain the debt.
19. It is found that Patel, Einhorn and Shirtcliff left the executive session after providing their testimony, and that they did not remain for a longer period than was necessary.
20. It is found that Kuehn and Wood are both employed by the Middletown Office of Municipal Development and serve as staff to the respondent and the board.
21. It is found that Kuehn and Wood receive, process and analyze the financial information contained in loan applications to determine the applicant’s creditworthiness and to make recommendations to the respondent and the board concerning whether or not the loans should be approved.
22. It is found that both Kuehn and Wood were invited into the July 10, 1995 executive session to testify concerning their analysis of the financial data submitted in Sohil’s loan application and to offer their opinions of Sohil’s ability to repay the loan.
23. It is found that Kuehn and Wood were in attendance for the entire executive session and that their presence was necessary throughout.
24. It is also found, however, that Wood was invited into the respondent’s July 10, 1995 executive session for the additional purpose of recording minutes of its executive session.
25. It is concluded that Kuehn and Wood’s presence during the entire executive session was proper because their testimony and opinion were necessary throughout; and that their presence in the executive session did not constitute a violation of §1-21g(a), G.S., under the facts and circumstances of this case.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. The Commission notes that its prior decisions have interpreted §1-21g(a), G.S., as precluding the attendance of non-agency members for the purpose of taking minutes. This decision should not be construed as authorizing the attendance of non-agency members in executive session for the purpose of taking minutes, but is limited to its conclusion that the presence of the non-agency member, who was also present to take minutes, was proper throughout the executive session due to her required testimony.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 1996.
Elizabeth A. Leifert
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:
Sydney M. Libby
251 Court Street, Apt. 3
Middletown, CT 06457
Middletown Jobs Loan Advisory Board, Financial Review Subcommittee
Timothy Lynch, Esq.
245 Dekoven Drive
]P.O. Box 1300
Middletown, CT 06457
Elizabeth A. Leifert
Acting Clerk of the Commission