FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
 Jim Whitney and Thomas Sevigny,  
  Complainants  
  against   Docket #FIC 2005-131
Planning Commission, Town of Canton,  
  Respondent October 11, 2005
       

 

The above-captioned matter was heard as a contested case on August 2, 2005, 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.      It is found that the respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.      By letter dated March 9, 2005 and filed on March 21, 2005, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to state the purpose of the executive session on its agendas dated December 6, 2004, and January 3, February 7, March 7, and March 11, 2005.  The complainants requested that the actions taken at such meetings be declared null and void.

 

3.      By letter dated March 23, 2005, the complainants supplemented their March 9, 2005 complaint by alleging the same violations against the Zoning and Inlands Wetlands Commissions of the town of Canton.  It is found, however, that the sole respondent in this case is the Planning Commission of the town of Canton, which was the only respondent given notice of the hearing in this matter.  Consequently, the allegations against the Zoning and Inlands Wetlands Commissions will not be addressed herein.

 

4.      At the hearing on this matter, the respondent moved to dismiss the complainants’ appeal pursuant to 1-206(b)(4)(B), G.S., claiming that even if the Commission finds that it committed a violation, such violation is a technical violation of the FOI Act that constitutes harmless error that does not infringe upon the complainants’ rights under the Act. 

 

5.      After consideration of the facts and circumstances of this case, the respondent’s motion is hereby denied.

 

6.      With respect to the December 6, 2004 and the January 3, and February 7, 2005 agendas of the respondent, it is found that the complaint in this matter was filed beyond the thirty-day jurisdictional mandate for filing appeals set forth in 1-206(b)(1), G.S. 

 

7.      The complainants contend that the Commission has jurisdiction over their complaint since it was filed within thirty days of their becoming aware of the alleged violation.

 

8.      It is found that there is no evidence that the December 6, 2004 and the January 3, and February 7, 2005 agendas of the respondent’s meetings were not properly filed in accordance with 1-225, G.S.

 

9.      It is further found that such meetings were not “unnoticed or secret” within the meaning of 1-206(b)(1), G.S.

 

10.   Therefore, it is concluded that the Commission lacks subject matter jurisdiction over the portion of the complaint regarding the agendas of the December 6, 2004 and the January 3, and February 7, 2005 meetings.

 

11.   With respect to the March 7 and March 11, 2005, notices and agendas, it is found that the respondent scheduled special meetings on March 7 and March 11, 2005.

 

12.   It is found that the notice and agenda for the March 7, 2005 special meeting in relevant part stated:

 

                        OTHER BUSINESS

1.      Staff Report:

2.      Approve Minutes for: February 7, 2005

3.      Executive Session

4.      Any Other Business

 

13.   It is found, however, that the respondent did not convene in executive session during its March 7, 2005 special meeting.

 

14.   It is found that the notice and agenda for the March 11, 2005 special meeting stated in its entirety:

 

                        CALL TO ORDER

                        ROLL CALL

                        NEW BUSINESS

1.      Executive Session

                        ADJOURNMENT:

 

15.  It is found that the respondent properly convened in executive session during its March 11, 2005 special meeting to discuss strategy and negotiations with respect to pending litigation to which the respondent is a party.

 

16.   At the hearing on this matter, the complainant argued that the notice and agenda of the meeting did not fairly apprise the public of the business to be transacted at the March meetings as required by the FOI Act and that it is overly burdensome for members of the public to be forced to attend a meeting, often almost in its entirety, before they would be informed of the business to be transacted during the executive session.

 

17.   Section 1-225(d), G.S., provides in relevant part that:

 

Notice of each special meeting of every public agency . . . shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state . . . The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency.  [Emphasis added.]

 

18.  In Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public what business would be transacted.

 

19.   In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.

 

20.   In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

21.  It is found that 1-225(d), G.S., requires that the items of business listed on a notice of a special meeting specifically identify the matters to be discussed or acted on at such meeting.

 

22.   It is found that “executive session”, by itself, is not an item of business and does not fairly apprise the public of the business to be transacted but rather only apprises the public that during a portion of the meeting, the public may be excluded from discussions of the public agency for one or more of the purposes specifically enumerated in 1-200(6), G.S.

 

23.  It is also found that the respondent’s March 11, 2005 notice of special meeting did not fairly apprise the public of the business to be transacted at that meeting as required by 1-225(d), G.S.

 

24.  It is concluded that a defect in the sufficiency of a notice of a special meeting may not be subsequently cured at the meeting itself by stating the business to be transacted.

 

25.   It is therefore concluded that the respondent violated 1-225(d), G.S.

 

26.  Notwithstanding the conclusion in paragraph 25, above, the Commission declines to consider the complainants’ request to declare null and void the actions taken by the respondent at is March 11, 2005 special meeting.

 

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 notice provisions of 1-225(d), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of October 11, 2005.

 

________________________________

Petrea A. Jones

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:

 

Jim Whitney and Thomas Sevigny

c/o Thomas Sevigny

131 Gracey Road

Canton, CT 06019

 

Planning Commission,

Town of Canton

c/o Matthew Ranelli, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-131FD/paj/10/14/2005