FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Michael Kelley and The
|against||Docket #FIC 1998-153|
Meriden Community Action
Agency, City of Meriden; and Meriden Community
Action Agency, City of Meriden,
|Respondents||September 9, 1998|
The above-captioned matter was heard as a contested case on July 23, 1998, at which time the complainants and the respondents appeared, 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 respondents are public agencies within the meaning of §1-18a(a), G.S.
2. By letter dated May 27, 1998, and filed with the Commission on May 28, 1998, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information Act (FOIA) on April 29, 1998 by holding an executive session of the executive committee of its Board of Directors without a lawful purpose (the executive session), and also by allowing attorney Lisa Barry to attend the executive session. Moreover, the complaint questioned whether the proper procedures were followed to convene [the] executive session, and at the hearing, the complainants elaborated by questioning whether the minutes of the executive session disclosed all persons who were in attendance, as required by §1-21g, G.S.
3. By a brief dated July 16, 1998 and at the hearing, the respondents argued that the executive session was proper pursuant to §1-18a(6)(B), G.S., and requested that the complainant newspaper company be fined because one of its reporters allegedly eavesdropped on the executive session.
4. Section 1-18a(6)(B), G.S., authorizes executive sessions for the purpose of:
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;
5. And §1-18a(9), G.S., defines pending litigation to include:
the agency's consideration of action to enforce or implement legal relief or a legal right.
6. With reference to procedures for convening an executive session, §1-21(a), G.S., states in pertinent part:
A public agency may hold an executive session as defined in subdivision (6) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section 1-18a.
7. And finally with reference to attendance at executive sessions and again to proper purposes for such sessions, §1-21g, G.S., states:
(a) 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 and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.(b) An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a non-governmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-18a.
8. It is found that the minutes of the April 29, 1998 meeting of the executive committee of the respondent agencys board of directors did state the reasons for the executive session as being to discuss the mayors proposal to terminate city support of the respondent agency and his proposal to introduce legislation to terminate the ordinance that created the board. And it is found that these reasons, in fact, stated the subject matter of discussion at the executive session.
9. It is found that attorney Lisa Barry was invited to the executive session to present legal opinion pertinent to the matters before said body, more specifically the subject matter referenced at paragraph 8, above.
10. It is also found that Alice Hazlett did cite §1-18a(e)(5), now re-codified as §1- 18a(6)(E), G.S., in connection with her motion to go into executive session and the minutes record this citation.
11. It is further found that the minutes did disclose all persons who were in attendance at the executive session.
12. Finally, it is found that the respondents on two occasions before the executive session sought FOIA guidance by telephone from the Commission.
13. Based upon the forgoing, it is concluded that the respondents consideration of how to respond to the mayors proposal discussed at paragraphs 8 and 9, above, was action to implement legal relief pursuant to §1-18a(9), G.S., and therefore that the executive session was convened for a lawful purpose pursuant to §1-18a(6)(B).
14. It is also concluded that attorney Barry was lawfully present pursuant to §1- 21g(a), G.S.
15. It is further concluded that the respondents did stat(e) the reasons for such executive session, as defined in said section 1-18a. It is true that, because of the operation of §1-21g(b), G.S., and the lack of any discussion of records as described in subsection (b) of section 1-19, the respondents did not put the thread through the eye of the needle by citing the legally correct subsection of §1-18a, G.S. But the intent to comply with all requirements of the FOIA with reference to executive sessions is clear, the respondents had no intent to mislead, and the citation error was harmless. The respondents should not, as lay-persons, be found in violation simply because they failed to read together several different provisions of the FOIA and thus cited the wrong legal purpose (when they did, in fact, have another valid legal purpose as concluded at paragraph 13, above).
16. It is further concluded that the minutes did satisfy the requirement of §1- 21g(a), G.S., to disclose all persons who were in attendance at the executive session.
17. Finally, it is concluded that the respondents did not violate §§1-21(a) or 1- 21g(a), G.S., and that there is no basis in the FOIA for fining the complainant newspaper company as requested by the respondents and described at paragraph 3, above.
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.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 1998.
_________________________ Doris V. Luetjen 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:
Michael Kelley and The Record- Journal Publishing Company 11 Crown Street Meriden, CT 06450
Executive Director, Meriden Community Action Agency, City of Meriden, and Meriden Community Action Agency, City of Meriden c/o Atty. Richard E. Hayber Solomon, Krupnikoff & Wyskiel, PC 35 Pleasant St. - POB 835 Meriden, CT. 06450-0835
__________________________ Doris V. Luetjen Acting Clerk of the Commission