Freedom of Information Commission
of the State of Connecticut
In the Matter of a Complaint by Final Decision
Phylis B. Bernard,
against Docket #FIC 1995-392
Norfolk Town Center Consultant
Respondent September 11, 1996
The above-captioned matter was heard as a contested case on March 29, 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. It is found that the respondent is a committee comprised of five members, appointed by the Town of Norfolk (hereinafter “the town”) Board of Selectmen for the purpose of selecting an engineering consultant to design blueprints for a town center enhancement project funded by the Federal Highway Administration pursuant to the federal Intermogul Surface Transportation Efficiency Act (hereinafter “ISTEA”).
2. The respondent is a public agency within the meaning of §1-18a(a), G.S.
3. By letter dated November 15 and filed November 16, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying her access to attend its November 15, 1995 meeting, and by failing to post notice of such meeting.
4. It is found that in the fall of 1995, the town issued a request for proposals for a consulting engineering firm to prepare plans for a new town center.
5. It is found that the respondent held a meeting at town hall on November 15, 1995, to interview three of six consultants selected for interviews from the eighteen consultants who had submitted proposals, and that three more consultants were scheduled to be interviewed the following day.
6. It is found that the complainant was at town hall on November 15, 1995, and requested permission to attend the meeting from the town’s first selectman, who is also a member of the respondent, but he told her that she could not attend the meeting.
7. The respondent claims that the gathering was not a meeting for purposes of the FOI Act pursuant to 23 Code of Federal Regulations, Chapter 1, §172, and because it was a meeting of a personnel search committee.
8. Section 1-18a(b), G.S., provides, in relevant part:
“Meeting” shall not include: Any meeting of a personnel search committee for executive level employment candidates…
9. It is found that the respondent is not a personnel search committee, and the consultants interviewed by the respondent were not executive level employment candidates within the meaning of §1-18a(b), G.S.
10. Section 172 of 23 C.F.R. Ch. 1 (4-1-95 Edition) provides for the general guidelines to be utilized in selecting a consultant in a Federal Highway Administration ISTEA project.
11. It is found that §172 of 23 C.F.R. Ch. 1 (4-1-95 Edition) neither supports the respondent’s claim that the November 15, 1995 gathering was not a meeting for purposes of the FOI Act, nor states an exemption to the open meeting requirements of the FOI Act.
12. It is concluded that the respondent’s November 15, 1995 gathering described in paragraph 4, above, was a meeting within the meaning of §1-18a(b), G.S.
13. The respondent next claims that it was permitted to close its November 15, 1995 meeting to the public pursuant to §1-19(b)(7), G.S.
14. Section 1-18a(e)(5), G.S., permits an agency to convene in 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.”
15. Section 1-19(b)(7), G.S., provides, in pertinent part:
Nothing in [the FOI Act] shall be construed to require disclosure of the contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned…
16. It is found that the respondent discussed engineering and feasibility estimates and evaluations made for the respondent relative to a prospective public construction contract with the consultants being interviewed at its November 15, 1995 meeting; and it is concluded that such documents are exempt from disclosure pursuant to §1-19(b)(7), G.S.
17. It is therefore concluded that the respondent could have permissibly convened in executive session to discuss the engineering and feasibility estimates and evaluations, pursuant to §§1-18a(e)(5) and 1-19(b)(7), G.S.
18. It is also found, however, that the respondent did not file a notice of the November 15, 1995 meeting, and did not vote to convene in executive session, as required by the provisions of §1-21(a), G.S.
19. It is therefore concluded that the respondent violated §1-21(a), G.S., by failing to file a notice of the November 15, 1995 meeting, and by failing to vote to convene in executive session.
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 §1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 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:
Phylis B. Bernard
15 Aetna Lane
P.O. Box 233
Norfolk, CT 06058
Norfolk Town Center Consultant Selection Committee
c/o Joseph Vitale, Esq.
Levy & Droney, P.C.
Pond View Center
74 Batterson Road
Farmington, CT 06034-0887
Elizabeth A. Leifert
Acting Clerk of the Commission