FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 14, 2009, at which time the complainants and the respondents 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.  The respondents are public agencies within the meaning of §1-200(1), G.S.

2.      By email dated May 5, 2009 and filed on May 6, 2009, the complainants appealed to the Commission, alleging that the respondent Board of Education (the “Board”) violated the Freedom of Information Act (“FOI Act”) in the following ways: 

a.       By posting an agenda for an April 27, 2009 meeting that failed to apprise the public that the Superintendent of Schools would conduct a presentation on “school reform”;

b.      By posting an agenda for an April 9, 2009 meeting that indicated that “guests” would appear at the meeting, but failed to apprise the public who said guests would be;

c.       By posting agendas for an April 9, 2009 and an April 27, 2009 meeting that described an agenda item in the following manner:  “Executive Session to discuss Appointments, Transfers, Resignations, Retirement Personnel, Real Estate and Threatened Litigation”; 

d.      By failing to post agendas and minutes for the April 9 and April 27, 2009 meetings online in a timely fashion;

e.       By failing to indicate that an April 13, 2009 meeting that was rescheduled for April 9, 2009 was a special meeting; and

f.       By requiring attendees at committee meetings to sign-in (and, by having someone other than the attendee sign a sign-in sheet on behalf of the attendee upon the attendee’s refusal to sign the sheet).

 

3.      In the complaint with respect to the Board, the complainants requested that the Commission order the members of the Board to participate in an FOI training class.

4.      In addition, by email dated May 5, 2009, the complainants made a request to the respondent Superintendent of Schools’ Director of Communications for a copy of a list of 15 planned school moves, which list was allegedly distributed to the Board’s administration and finance committee members at a May 4, 2009 Board meeting. 

 

5.      It is found that, by email dated May 5, 2009, the respondent Superintendent’s Director of Communications acknowledged the complainants’ request, but stated that “[t]his request will be honored once notification has been sent to parents who have students in the schools who will be moving.  We chose not to send notification to parents until the A&F committee approved the contracts necessary to confirm the move dates so that communication with parents was accurate and timely.” 

6.      In the complaint described in paragraph 2, above, the complainants alleged that the respondent Superintendent’s failure to produce the requested record violated the Freedom of Information Act. 

7.      Section 1-200(6), G.S., defines “executive session,” in relevant part as follows:

. . . a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

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

 

The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken. Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available.  Each such agency shall make, keep and maintain a record of the proceedings of its meetings.

 

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

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency.  For any such public agency of the state, such agenda shall be posted on the public agency’s and the Secretary of the State’s web sites.  Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

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

Notice of each special meeting of every public agency. . . shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency.  The secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting. . . .  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. 

11.  With regard to the allegations raised in paragraphs 2.a, 2.b and 2.c, above, concerning the Board’s agendas, it is found that, at the Board’s April 27, 2009 meeting, the Superintendent conducted a power point presentation on school reform. 

12.  It is further found that the agenda for the Board’s April 27, 2009 meeting agenda did not include an action item indicating that a power point presentation on school reform would be conducted at the Board’s April 27, 2009 meeting.

13.  It also found that the agendas for the Board’s April 9, 2009 and April 27, 2009 meetings included the following action item:  “Guests.”

14.  It is found that, while it is the Board’s practice to reserve a spot on its agendas for the possibility that a guest might appear, it does not always know at the time it creates any particular agenda whether it will actually be able to engage a guest speaker or a guest performer to appear at the meeting.  It is further found that sometimes the Board is not certain until shortly before the start of a meeting that its efforts to arrange for one or more guests have been successful.  In particular, as regards the April 9, 2009 and April 27, 2009 meetings, it is found the Board did not know at the time it created the respective agendas whether guests would be appearing at these meetings. 

15.  It is found that the Board includes the executive session language identified in paragraph 2.c, above, on every agenda.  It is found that the Board’s regular practice is to convene in an open meeting and then to move immediately into executive session.  It is further found that once the Board is convened in executive session, the Board’s chief operating officer or personnel director will enter into executive session with the Board and use some of the executive session time to give the Board a pre-meeting briefing about matters that are to be addressed at that night’s meeting.  It is further found that the Board’s chief operating officer will also enter into executive session with the Board to give the board members a general update on matters such as recruitment, retirement and general litigation.  It is found that the Board entered into executive session on April 9, 2009 and on April 27, 2009 to engage in and receive a pre-meeting briefing and update. 

16.  In addition, it is found that the standard executive session language that the Board inserts in all its agendas does not provide the public with any detail whatsoever concerning the particular matter or matters (be an appointment, transfer, resignation, retirement, real estate or litigation matter) that the Board intends to discuss in executive session. 

17.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC, et al., Superior Court, Docket No. 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.”

18.  Based on the findings in paragraphs 11 and 12 above, it is found that the Board’s April 9, 2009 agenda failed to apprise the public that the Superintendent planned to conduct a presentation on school reform.  Based on the findings in paragraphs 15 and 16, above, it is found that the Board’s April 9, 2009 and April 27, 2009 agendas were insufficient to apprise the public which specific matters the Board intended to take up in the respective executive sessions.  It is further found that the Board inappropriately convened in executive session on April 9, 2009 and on April 27, 2009 to engage in and receive pre-meeting briefings.

 

19.  Based on the findings in paragraph 18, above, it is concluded that the respondent Board violated §1-225(c), G.S., by failing to describe sufficiently on its agendas the business it planned to transact at its April 9, 2009 and April 27, 2009 meetings.  It is further concluded that, by convening in executive session for the purpose of having a pre-meeting briefing, the respondent Board violated open meeting provision of §1-225(a), G.S.

20.  It is found, however, that the Board’s agenda item indicating that “guests” might appear at the Board’s April 9, 2009 and April 27, 2009 meetings did not violate the provisions of §1-225(c), G.S., as the respondent Board did not know at the time of preparing these agendas whether it would actually be able to arrange for a guest speaker or performer to appear at these meetings.

 

21.  With respect to the violations alleged in paragraph 2.d, above, it is found that the Board has encountered difficulties with posting its agendas and minutes on its Internet web site in a timely fashion, including the agendas and minutes for the Board’s special April 9, 2009 meeting and regular April 27, 2009 meeting.  It is found that these complications are due, in part, to difficulties that the Board experienced in dealing with its previous Colorado internet provider.  It is found that the Board has recently recreated its entire website, and has thereby simplified the process by which it will be able to post its minutes and agendas online in the future. 

22.  It is further found, however, that the Board is hesitant to post minutes on its website within seven days as required pursuant to §1-225(a), G.S., if such minutes have not been officially approved by the Board as the official minutes.  The Commission takes this opportunity to inform the Board that there is no provision in §1-225(a), G.S., that allows a public agency to extend the seven-day posting requirement simply because draft minutes have not been officially approved by a public agency.  The Board may, if it desires, mark minutes that are not officially adopted as “draft” or “subject to revision” when it makes such minutes available for inspection by the public in hardcopy and on its web site.     

 

23.  In their post hearing brief, dated October 5, 2009 and filed October 6, 2009, the complainants informed the Commission that, since the filing of their complaint and the contested hearing in this matter, “[t]he Board of Education now posts meeting minutes online.”  Based on the Board’s compliance in this area, the complainants further indicated in their brief that they were withdrawing the complaint with regard to the posting of minutes online. 

24.  With respect to the violation alleged in paragraph 2.e, it is found that the Board’s April 9, 2009 meeting was rescheduled from April 13, 2009 because the Board realized that it would not have a quorum of its members available to attend the April 13, 2009 meeting.  It is further found that the agenda for the April 9, 2009 meeting indicated that this meeting was “rescheduled from April 13, 2009,” but it did not specifically state that the April 9, 2009 meeting would be a special meeting.  It is found, however, that there is no specific requirement under the FOI Act that mandates that the Board specifically state on a meeting agenda that the meeting is either a special or a regular meeting. 

25.  Based on the findings in paragraph 24, above, it is concluded that the Board did not violate the FOI Act as alleged in paragraph 2.e, above.

 

26.  With respect to the violation alleged in paragraph 2.f, above, §1-225(e), G.S., states as follows:

 

No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance.

 

27.  It is found that the Board employs a sign-in sheet at its meetings so that it can record who attends its meetings and who participates at its meetings by speaking or asking questions at the meetings, for the purpose of reflecting those individuals’ identities in its meeting minutes.

28.  It is found that complainant Benton has refused in the past to sign her name on the Board’s sign-in sheet.  It is further found that the Board’s chief operating officer has filled in the complainant’s name on the sign-in sheet in the past.  However, it is further found that, once the complainant voiced her objection to having her name written in on the sign-in sheet, the Board ceased such practice. 

29.  It is found that the Board has never conditioned complainant Benton’s ability to enter into a Board meeting on her signing in to such meeting.  It is further found that complainant Benton was never informed that she could be asked to leave a meeting if she refused to sign her name on the sign-in sheet.  It is found, consequently, that the Board did not impose an improper precondition of attendance of the April 9, 2009 or the April 27, 2009 meetings with the use of the sign-in sheet.

30.  Based on the findings in paragraphs 27 through 29, above, it is concluded that the Board did not violate §1-225(e), G.S.

31.  With respect to the complainants’ request for records from the respondent Superintendent referenced in paragraph 4, above, §1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

32.  Section 1-210(a), G.S., provides in relevant part that:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . (3) receive a copy of such records in accordance with section 1-212.

 

33.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

34.  It is found that to the extent the respondent Superintendent maintains the record described in paragraph 4, above, such record is a public record and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless it is exempt from disclosure. 

 

35.  The respondent Superintendent contends that the requested record is exempt from disclosure pursuant to the provisions of §1-210(b)(1), G.S.

 

36.  Section 1-210(b)(1), G.S., permits the nondisclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.” 

 

37.  It is found that complainant Benton first learned at the May 4, 2009 Board meeting  that a document existed that contained a list of school moves (the “list”) that were being contemplated to accommodate school demolition and reconstruction.  It is further found that the list was created by the Board’s chief operating officer.  Finally, it is found that at the time of the complainants’ records request on May 5, 2009 the list was in the possession of the respondent Superintendent.

38.  It is found that, at the time of the May 4, 2009 meeting, the Board was considering the approval of two contracts to engage a movement management company to assist with the anticipated school moves.

 

39.  It is found that, at some point during the May 4, 2009 meeting, one of the Board’s members requested to see the list referenced in paragraph 37, above, and the Board’s chief operating officer provided the list to the Board member during the meeting.  It is further found that at least one other Board member reviewed the list during the May 4, 2009 meeting.  It is further found that, once the list was provided to the Board, it remained on the table in front of the Board for the duration of the May 4, 2009 meeting.[1] 

 

40.  Because this list was distributed to public agency members and consulted by such members during the course of a public meeting, it is found that the Board failed to prove that the requested record constituted a “preliminary draft[] or note[]” within the meaning of  §1-210(b)(1), G.S.  Moreover, it is found that the respondent Superintendent failed to prove that it had determined that the public interest in withholding such record clearly outweighed the public interest in disclosure, as required for the application of the exemption pursuant to §1-210(b)(1), G.S. 

 

41.  Based on the findings in paragraphs 37 through 40, above, it is therefore concluded that the list maintained by the Superintendent on the date of the records request was not exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

42.  Accordingly, it is concluded that the Superintendent violated the disclosure requirements of §§1-210(a) and 1-212, G.S., when he failed to provide the list to the complainants. 

43.  Because the multiple violations found in this case indicate a lack of understanding on the part of the Board with regard to the FOI Act, the Commission finds that it is appropriate to grant the complainants’ request that the Board participate in an FOI education class.

 

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

 

1.  Henceforth, the respondent Board shall strictly comply with the provisions of §§1-225(a), 1-225(b), and 1-231(a), G.S.

 

2.   Henceforth, the respondent Superintendent shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212, G.S.

 

3.  Forthwith, the respondent Board, or its designee, shall arrange for an FOI Act training session to be conducted by the staff of the FOI Commission.  The respondent, or its designee, shall forthwith contact the FOI Commission to schedule such training session.

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

____________________________

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:

 

Elizabeth Benton and

The New Haven Register

40 Sargent Drive

New Haven, CT 06511

Superintendent of Schools,

New Haven Public Schools;

and Board of Education,

New Haven Public Schools

C/o Kathleen M. Foster, Esq.

Office of the Corporation Counsel

165 Church Street, 4^th Floor

New Haven, CT 06510

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-278FD/sw/4/19/2010