FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Mark Zaretsky and

The New Haven Register,

 
  Complainants  
  against   Docket #FIC 2006-443

Board of Selectmen,

Town of Branford,

 
  Respondent August 22, 2007
       

      

The above-captioned matter was heard as a contested case on January 12, 2007, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The complaint was consolidated for hearing with Docket #FIC 2006-452, Pamela Fowler v. Board of Selectmen, Town of Branford.

 

            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 1-200(1), G.S.

 

2.  By letter of complaint filed September 1, 2006, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by conducting its August 29, 2006 meeting with an “inadequate meeting notice.” 

 

3.  It is found that, at the respondent’s August 22, 2006 meeting, the first selectwoman announced that “there may be a special Board of Selectmen’s meeting next Tuesday [August 29, 2006] to discuss a critical matter,” without further elaboration or explanation.

 

4.  It is found that the respondent indeed held another special meeting on August 29, 2006 at 6:00 p.m.

 

5.  It is found that notice of the August 29, 2006 meeting was given at about 1:00 p.m. on August 28, 2006.

 

6.  It is found that the agenda for the August 29, 2006 meeting contained only the following two items:

 

1.                  To consider and if appropriate approve an addendum to a lease.

2.                  Adjournment.

 

7.  It is found that the first selectwoman approved the agenda of the August 29, 2006 meeting.

 

8.  It is found that, immediately after learning of the agenda for the August 29, 2006 meeting, the Branford third selectman did not understand what lease or what addendum were referenced by that agenda, and made an inquiry to the first selectwoman. 

 

9.  It is found that, immediately after learning of the agenda for the August 29, 2006 meeting, the complainant Zaretsky, who is a reporter for the New Haven Register assigned to Branford, also did not know what lease the agenda referred to, and similarly made an inquiry to the first selectwoman.

 

10.  It is found that both the Branford third selectman and the complainant Zaretsky inquired of the first selectwoman as to the subject of the lease referenced in the agenda for the August 29, 2006 meeting.  Zaretsky’s telephone message was not returned.  The third selectman was given a copy of the lease in a sealed envelope, and was instructed not to share the contents with the public. 

 

11.  It is found that Zaretsky did not attend the August 29, 2006 meeting because he concluded that the lease to be considered was not important.

 

12.  It is also found that, immediately after learning of the agenda for the August 29, 2006 meeting, a member of the Branford Representative Town Meeting (“RTM”) who was particularly interested in issues relating to a town-owned property known as the Stony Creek Quarry inquired of the third selectman as to the subject of the lease, and was told that he had been instructed that it was confidential. 

 

13.  It is found that the lease referenced in the agenda for the August 29, 2006 meeting was in fact for the Stony Creek Quarry, and that the new or amended lease, or the lease addendum, however it was characterized, provided for a change and expansion of quarry operations. 

 

14.  It is found that the lease was a matter of significant public interest and importance in the town, involving issues of revenue, traffic, environmental protection, preservation of an historic landmark, and raising the issue whether the respondent or the RTM had the actual authority to approve a change to the lease.  Additionally, the quarry itself was a matter of public controversy, based on alleged attempts by members of the first selectwoman’s administration to use the police to investigate how granite from the quarry came to be on the property of a former first selectman who is considered one of the current first selectwoman’s political rivals.

 

15.  It is found that the August 29, 2006 meeting was held as scheduled, and that approximately 12 members of the public attended, some of whom had discovered or inferred that the lease to be discussed concerned the quarry.  After discussion and public comment, a lease addendum increasing the rent and royalty payments, and changing various other terms, was approved by a two-to-one vote of the respondent (the third selectman voting in opposition).

 

16.  The complainants contend that the item “To consider and if appropriate approve an addendum to a lease” did not reasonably apprise the public that the respondents would consider and approve a change to the Stony Creek Quarry lease, thus violating 1-225(c), G.S.  Specifically, the complainants contend that there was no way of knowing from the agenda item what lease would be discussed, and that nothing in the item mentions the Stony Creek Quarry.

 

17.  Section 1-225(d), G.S., provides in relevant part that “The notice [of a special meeting] 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.” 

 

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 the Stony Creek Quarry is not the only real or personal property leased by the town, and that knowledge of which lease was to be considered would be a significant factor affecting the ability of individuals to properly prepare and be present to express their views concerning the quarry lease.

 

22.  It is found that several members of the public, and also members of the respondent, expressed their views concerning the Stony Creek Quarry lease at the respondent’s August 29, 2006 meeting.  Those individuals raised concerns about increasing the amount of stone to be quarried, about the maintenance of the road to the quarry, about storage on the site, about overuse of the property, and about the vagueness of the agenda for the meeting.

 

23.  It is found that the third selectman, as a member of the board of selectmen that would vote on the quarry lease, was an official who needed to properly prepare to express his views and participate in the board’s decision.

 

24.  It is found that the member of the RTM described in paragraph 12, above, was a member of a representative legislative body with a competing claim to the authority to amend the quarry lease.  It is also found that the member of the RTM was a member of the public who needed to properly prepare to express his views to the respondent at its August 29 meeting.

 

25.  It is found that the complainant Zaretsky was a member of the public who would have attended the August 29, 2006 meeting had he understood that the matter of the Stony Creek Quarry lease was on the agenda. 

 

26.  It is found that at the time of the filing of the notice at issue, none of the individuals described in paragraphs 23-25, above, understood the agenda item to mean that the respondent was considering taking action on the Stony Creek Quarry lease.

 

27.  Based on the foregoing findings, it is concluded that the agenda item “To consider and if appropriate approve an addendum to a lease” was not itself sufficient to apprise interested parties or the public that the respondent was considering taking action on the Stony Creek Quarry lease.

 

28.  The respondent contends that it was engaged in delicate negotiations with the existing lessee and a new potential lessee, that time was of the essence, that it was concerned with the potential for litigation, and that documents relating to the lease were “privileged and confidential in nature.”

 

29.  However, the respondent failed to prove that the documents relating to the lease were exempt from disclosure under the FOI Act.  Moreover, the first selectwoman conceded at the hearing that there was no reason not to use the phrase “Stony Creek Quarry lease,” rather than simply the phrase “a lease” on the agenda of the August 29, 2006 meeting.

 

30.  It is therefore concluded that the respondent violated 1-225(c), G.S., by failing to describe the business to be transacted at the August 29, 2006 meeting.

 

31.  With respect to the issue of remedies, 1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend ….

 

32.  It is found that attendance at the August 29, 2006 meeting was within the range of normal attendance.

 

33.  It is found that, given the controversial nature of the Stony Creek Quarry lease, it would be reasonable to expect attendance at the August 29, 2006 meeting to have been above average.  More specifically, it is found that the complainant Zaretsky, although he knew that the quarry lease was a “hot button issue” in the town, chose not to attend the meeting, thinking that, based on the agenda, nothing important would be taken up.  It is found that, had the reporter known from the agenda that the Stony Creek Quarry lease was to be acted on, the reporter would have attended the meeting.  It is found, by reasonable inference from the facts on the record, that other individuals similarly would have attended the meeting had they known of its subject.

 

34.  It is therefore concluded that the respondent, through the vagueness of its agenda, combined with its concomitant failure to respond to the inquiries concerning the subject matter of the August 29, 2006 meeting, effectively denied the right of the complainant Zaretsky, and likely other members of the public, to attend the meeting. 

 

35.  After the hearing, the respondent contended that its action to approve the lease of the quarry is now moot, because the respondent subsequently voluntarily rescinded its actions at the request of the new lessee, who was unable to obtain title insurance after the RTM passed a resolution requiring any revision to the quarry lease to come before the RTM for review.

 

36.  However, no evidence was offered at the hearing to prove the representation made in paragraph 35, above.

 

37.  It is concluded that the relief appropriate to rectify the denial of the right of adequate notice under 1-225, G.S., is to declare null and void the actions taken at the August 29, 2006 meeting.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The action by the respondent with respect to the Stony Creek Quarry lease at its August 29, 2006 meeting is declared null and void.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 22, 2007.

 

 

________________________________

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:

 

Mark Zaretsky and

The New Haven Register

40 Sargent Drive

New Haven, CT 06611

 

Board of Selectmen,

Town of Branford

c/o Edward L. Marcus, Esq.

The Marcus Law Firm

111 Whitney Avenue

New Haven, CT 06510

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-443FD/paj/8/22/2007