FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Rick Guinness and the

New Britain Herald,

 
  Complainants  
  against   Docket #FIC 2008-164

Board of Finance,

City of New Britain,

 
  Respondent January 29, 2009
       

 

The above-captioned matter was heard as a contested case on July 25, 2008, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with docket #FIC 2008-162, Rick Guinness and the New Britain Herald v. Fire and Police Pension Trustees, City of New Britain; and docket #FIC 2008-172, Rick Guinness and the New Britain Herald v. Mayor’s Downtown Steering Committee, City of New Britain.

 

1.  The respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter dated March 12, 2008, and filed with the Commission on March 13, 2008, the complainants alleged that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by conducting an illegal meeting and denying them access to a portion of a meeting held by the respondent on March 11, 2008.  In such complaint, the complainants requested the imposition of a civil penalty against the members of the respondent.

 

            3.  It is found that, on March 11, 2008, the Director of Finance for the Town of New Britain conducted a gathering to discuss the budget of New Britain’s Board of Education.  Two members of the seven-member respondent board were present, as well as several officials from the New Britain Board of Education.

 

4.  It is found that the Director of Finance scheduled the March 11, 2008 gathering to discuss budget recommendations in preparation for a regular meeting of the respondent scheduled to take place on March 24, 2008.

 

5.  It is also found that the respondent did not file any notice or minutes for the gathering held on March 11, 2008.

 

6.  It is found that the complainants were at the March 11, 2008 gathering and were asked to leave at the point where the two members of the respondent were going to discuss the recommended budget.

 

7.  At the hearing on this matter and in its brief to the Commission, the respondent claimed that the May 11, 2008 gathering was a workshop and was not a meeting of the respondent, since a quorum of its members were not present.  The complainants assert that the gathering was a meeting.

 

8.  Section 1-225(a), G.S., provides in relevant part that “. . . [t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

9.  Section 1-200(2), G.S., further provides that:

 

. . . ‘meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency … to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. (Emphasis added.)

 

10.  It is found that the respondent is a multimember public agency, consisting of seven members, and that two members of the respondent, not comprising a quorum, convened or assembled on March 11, 2008 for a gathering to discuss the New Britain Board of Education’s budget.

 

11.  It is also found that the discussions that took place at the March 11, 2008 gathering did not constitute communication to a quorum of the respondent, but they did concern substantive issues over which the respondent has “supervision and advisory power”, within the meaning of 1-200(2), G.S.

 

12.  It is found that Article X of the Charter of the City of New Britain requires officers of various departments of the City of New Britain to submit budget estimates “using the forms, systems, and/or methods prescribed by the Mayor or his designee.”  In this matter, the Director of Finance is such designee.

 

13.  It is found that the method prescribed by the Director of Finance involved submissions of budget recommendations from various New Britain town departments followed by scheduled “budget hearings with individual departments.”  It is also found that, although the respondent refers to such budget hearings as “workshops,” Article X of the New Britain City Charter describes the gatherings as “hearings.”

 

14.  The Connecticut Supreme Court has stated, as an application of the general FOIA principle that exceptions to disclosure are narrowly construed, that: “the statutory definition of public meetings contained in 1-18a(b) [re-codified as 1-200(2), G.S.] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings.” Glastonbury Education Association v. Freedom of Information Commission, 234 Conn. 704, 713-714 (1995).  It is also specifically concluded that it is not necessary to have a quorum in order to have a “hearing” or “proceeding”, and therefore a “meeting” pursuant to 1-200(2), G.S.  As the Appellate Court stated in Emergency Medical Services Commission of the Town of East Hartford v. Freedom of Information Commission, 19 Conn. App. 352, 355 (1989):

 

The plain language of General Statutes 1-18a(b) [re-codified as 1-200(2), G.S.] does not require a quorum as a necessary precondition to “any hearing or other proceeding of a public agency….” The word ‘quorum” does not appear in the clause dealing with “any hearing or other proceeding of a public agency….” The legislature did not define a meeting as any hearing or proceeding of a quorum of a public agency, as it might have done.

 

But see Town of Windham v. Freedom of Information Commission, 48 Conn. App. 529, (1998), appeal dismissed, 249 Conn. 291 (1999), where the Supreme Court declined to clarify the conflict between these two Appellate Court decisions; See also Meriden Board of Education v. Freedom of Information Commission, 27 Conn. L. Rptr. 298 (2000); Common Council of the City of Middletown v. Freedom of Information Commission, 16 Conn. L. Rptr. 163 (1996); East Hartford Town Council v. Freedom of Information Commission, 16 Conn. L. Rptr. 121 (1996); Ansonia Library Board of Directors v. Freedom of Information Commission, 42 Conn. Sup. 84 (1991); Bristol v. Freedom of Information Commission, Docket No. 254667, Superior Court, Judicial District of Hartford‑New Britain at Hartford, Memorandum of Decision dated April 13, 1983 (Ripley, J.)

 

15.  It is concluded that the March 11, 2008 “budget hearing” or “workshop” was a “hearing” or “proceeding” within the meaning of 1-200(2). 

 

16.  It is therefore concluded that the gathering described in paragraphs 3 and 10, above, was a “meeting” of the respondent within the meaning of 1-200(2), G.S.

 

17.  Because the budget hearing was a meeting of the respondent, it is finally concluded that all the FOIA requirements for meetings were applicable (notice, openness and minutes).  It is also concluded that the March 11, 2008 meeting of the respondent therefore violated the requirements of 1-225, G.S., as alleged in the complaint.

 

18.  The Commission declines to consider the imposition of a civil penalty in this matter.

 

 

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 require the budget hearings to comply with all of the requirements of 1-225, G.S.

 

 

 

 

                       

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 2009.

 

 

____________________________

S. Wilson

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:

 

Rick Guinness and the New Britain Herald

One Herald Square

New Britain, CT 06051

 

Board of Finance,

City of New Britain

c/o Joseph E. Skelly, Jr., Esq.

New Britain Corporation Counsel

27 West Main Street

New Britain, CT 06051

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-164FD/sw/2/4/2009