Opinion
No. CV 08 4019077S
June 3, 2009
MEMORANDUM OF DECISION
The plaintiffs, Eddie Perez and city of Hartford (the city), appeal from a September 24, 2008 final decision of the defendant freedom of information commission (FOIC), granting relief to the defendants Jeffrey B. Cohen and the Hartford Courant. Cohen, a reporter for the Hartford Courant, brought a complaint to the FOIC regarding access to meetings of an Arena Task Force, formed to consider economic development in the city.
Due to the order in the final decision of the FOIC impacting the plaintiffs, aggrievement is found. State Library v. Freedom of Information Commission, 240 Conn. 824, 694, A.2d 1235 (1997).
The record shows that the complaint was the subject of a hearing before the FOIC on July 28, 2008, and on September 3, 2008 a proposed decision was rendered. The plaintiffs opposed the entry of the proposed decision at a meeting of the FOIC held on September 24, 2008. The FOIC voted to adopt the final decision on that date.
The final decision (Return of Record, ROR, pp. 186-89) made the following relevant findings:
1. The [plaintiffs] are public agencies, within the meaning of § 1-200(1)(A), G.S.
2. By letter of complaint received and filed on April 21, 2008, the [defendant Cohen] appealed to the Freedom of Information ("FOI") Commission, alleging that [the plaintiffs] violated the FOI Act by prohibiting the public from attending the April 9, 2008 meeting of the Arena Task Force. The [defendant Cohen] requested the imposition of a civil penalty against the [plaintiffs].
3. The [plaintiffs] assert that the Arena Task Force is not a public agency, within the meaning of § 1-200(1)(A), G.S., and, therefore, its meetings do not need to conform to the requirements of the FOI Act.
***
6. It is found that Mayor Eddie Perez convened the Arena Task Force. It is found that the mayor appointed several public officials and leaders of the Hartford business community to serve on the task force.
7. It is found that the Mayor's communications office announced the creation of the task force, published two press releases under the Mayor's letterhead, and distributed a list of the task force's members on the Mayor's letterhead.
8. It is found that the April 9, 2008 meeting of the task force was its inaugural meeting and was held at Hartford City Hall.
9. It is found that the task force is a "committee . . . created by" the mayor of the City of Hartford, within the meaning of § 1-200(1)(A), G.S.
10. Accordingly, it is concluded that the Arena Task Force is a public agency within the meaning of § 1-200(1)(A), G.S.
11. It is found that Mayor Perez created the task force to advise him about the Hartford corporate business community's support for a new arena in the XL Center as Hartford prepares to receive the Center from the State in 2013. It is found that Mayor Perez created the task force to help him decide whether to request public funds to build a new arena.
12. It is found that at its meeting of April 9, 2008, the task force discussed matters over which it has supervision, control, jurisdiction or advisory power, within the meaning of § 1-200(2)(A), G.S.
13. Accordingly, it is concluded that the April 9, 2008 meeting of the Arena Task Force was a meeting within the definition of the FOI Act.
CT Page 9287
14. Section 1-225(a), G.S., provides in relevant part: The meetings of all public agencies . . . shall be open to the public.
15. It is found that Mayor Perez issued a press release about the April 9, 2008 meeting of the Arena Task Force 45 minutes before its 9 a.m. starting time, but refused to permit [defendant Cohen], or any other member of the public, to attend the meeting at City Hall. it is further found that [defendant Cohen], who is a reporter for the Hartford Courant, contacted attorneys for the City of Hartford while the meeting was going on, but was nevertheless unable to gain access to the meeting.
16. It is found that Mayor Perez's communications office required all members of the public, including [defendant Cohen], to wait in a large public area of City Hall while the meeting of the task force occurred in the Mayor's Green Conference Room on the second floor of City Hall. It is found that, although the mayor denied the public access to the task force's meeting, the mayor's staff staged a media event following the meeting, making members of the task force available for photographs and comment.
17. It is found that Mayor Perez's communication office issued a second press release following the April 9, 2008 meeting of the task force on the Mayor's letterhead. It is found that the press release included several statements by Mayor Perez about the task force and quoted the mayor, "I look forward to the contributions of the Task Force on this very important economic development matter."
18. It is found, however, that the Mayor insisted that the task force is not a public agency and, therefore, refused to open task force meetings to the public. It is found that the mayor described the task force as "an advisory group to the mayor," but nevertheless claimed that the task force "is not a publicly established group."
19. It is found that subsequent to the April 9, 2008 meeting of the task force at City Hall, and the [defendant Cohen] published a newspaper report about not being able to attend the meeting, future meetings of the task force moved to the offices of the MetroHartford Alliance, which is not a public agency.
20. It is found that [defendant Cohen] learned about the meeting times of future task force meetings through unofficial sources. It is found that [defendant Cohen] tried to attend at least one meeting of the task force at the MetroHartford Alliance, but was barred from attending.
21. It is concluded that the [plaintiffs] violated § 1-225(a), G.S., of the FOI Act, as alleged in the complaint, by refusing to open the April 9, 2008 task force meeting to the public.
22. It is further concluded that moving the location of the meetings of the Arena Task Force to the MetroHartford Alliance did not affect the task force's status as a public agency.
23. It is found that Mayor Eddie Perez is the official directly responsible for the violation on April 9, 2008.
24. It is also found that Mayor Perez's failure to comply with the FOI Act, as described in paragraph 18, above, was without reasonable grounds.
Based on these findings, the FOIC entered the following order:
1. Forthwith, the [plaintiff] Mayor Eddie Perez shall remit a civil penalty in the amount of $500.00 to this Commission.
2. Within seven days of this decision, the [plaintiff] Arena Task Force shall make minutes of all its meetings available for public inspection at City Hall. Such minutes shall include a detailed summary of what was discussed at the meetings and shall include a record of all votes taken. Henceforth, the [plaintiffs] shall make minutes of its meetings available for public inspection at City Hall within seven days of its meetings.
3. Henceforth, the [plaintiffs] shall comply with all the public access requirements of § 1-225, G.S., including open meetings, prompt availability of minutes of meetings, and posting of notice and agendas of meetings.
4. The [plaintiff] mayor and his corporation counsel are strongly encouraged to attend a FOI workshop to be conducted by a member of the Commission's staff. The [plaintiff] mayor or his designee should contact the Commission's office to arrange such workshop. (ROR, p. 189.)
This appeal followed. In deciding this case, the court is bound by the rules derived from the Uniform Administrative Procedure Act (General Statutes § 4-166 et seq.). "[R]eview of an agency's factual determination" involves whether the "administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court or of this court to retry the case or to substitute its judgment for that of the administrative agency . . . An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole." (Citations omitted.) Rocque v. Freedom of Information Commission, 255 Conn. 651, 658-69, 774 A.2d 957 (2001). See also Williams v. Freedom of Information Commission, 108 Conn.App. 471, 476, 948 A.2d 1058 (2008) ("As we frequently have stated, [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.")
"Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citations omitted.) Id. at 476. "Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically could follow from those facts." Wiese v. Freedom of Information Commission, 82 Conn.App. 604, 608-09, 847 A.2d 1004 (2004).
The court also notes that Williams v. Freedom of Information Commission, supra, at 476, followed the case of Longley v. Retirement Commission, 284 Conn. 149, 163-64, 931 A.2d 890 (2007): "[T]he traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . ."
The plaintiffs first argue that the FOIC erred in finding that the Arena Task Force was a "committee created by" the plaintiffs and that therefore its meetings were public. The defendants argue that in 1993, in reaction to a court decision, the legislature added the words "created by" to § 1-200(1)(A). The result flowing from the amended statute, according to the defendants, was that when a public official brings together a group of persons consisting of both public and private individuals, the committee created is a public agency.
P.A. 93-195, according to the defendants, added the phrase "created by" to § 1-200(1)(A) to adopt the suggestion made in Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 693, 595 A.2d 313 (1991): "Thus, although the ERC is a `committee' within the ordinary dictionary definition, it is unclear from an examination of the text of the statute whether the legislature intended the phrase `including any committee of any such office, subdivision, [etc.] . . .' to encompass a committee that is composed of some or all persons who are not agency members." (Emphasis in original.) The Supreme Court noted that to extend the "committee" to nonmembers of the agency would require the addition of the phrase "created by" after the italicized "of" in the above-quoted phrase.
The plaintiffs counter that the legislature could not have meant to be so inclusive in the 1993 legislation, so that merely bringing together a group of private citizens, creates a public agency. They urge the court to employ instead the holding of Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 436 A.2d 266 (1980), which set forth a "functional equivalency" test to determine whether a "public agency" exists under § 1-200(1).
The "functional equivalent" test is also authorized by § 1-200(1)(B).
The court concludes that the FOIC has not acted in abuse of its discretion in relying on § 1-200(1)(A) and its use of the phrase "created by" to conclude that the Arena Task Force is a "public agency." This is a situation where Longley applies; the court defers to the interpretation of the FOIC because it is "time-tested and reasonable." As the FOIC points out in its brief at 9, it has relied on the wording change introduced into § 1-200(1)(A) in at least three complaints analogous to those brought against the plaintiffs: (1) Hughes v. Superintendent of Schools, Docket #FIC 2001-557 (a committee comprised of parents and teachers with the purpose of advising the superintendent of schools about the kindergarten curriculum was a committee "of or created by" the assistant superintendent, a public agency;) (2) Kemler v. Southern Connecticut State University, #FIC 2007-148 (the promotion and tenure committee was a committee "created by" the university under a collective bargaining agreement between the faculty and the university); and (3) Sulich v. First Selectman, Town of Canterbury, #FIC 2008-293 (panel composed of first selectman and chairmen of zoning and wetlands commissions was a committee created by the town). Since the FOIC found that the Arena Task Force was "created by" the plaintiff Perez as mayor (ROR, finding 11, p. 187), the Arena Task Force falls within the definition of "public agency" in § 1-200(1).
Even if the "functional equivalent" test were to apply, the court would still find that the Arena Task Force is a "public agency." The test involves consideration of four criteria: (1) Does the entity perform a governmental function? (2) What is the level of governmental funding? (3) What is the extent of government involvement? and (4) Was the entity created by the government? Board of Trustees v. Freedom of Information Commission, supra, at 554.
The court in Fromer v. Freedom of Information Commission, 90 Conn.App. 101, 105-06, 875 A.2d 590 (2005), made the following significant points about this test: (1) "[a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive;" (2) "[a] case by case application of the factors noted above is best suited to ensure that the general rule of disclosure underlying this state's [act] is not undermined by nominal appellations which obscure functional realities;" and (3) "[t]he key to determining whether an entity is a governmental agency . . . is whether the government is really involved in the core of the program." (Citations omitted.)
Turning to the four factors as they apply on the findings of the FOIC, the Arena Task Force performed a function of government to the extent that it was to report to the plaintiff mayor on whether the business community would support an arena at the XL Center and agree to solicit funds for such a project. (ROR, finding 11, p. 187.) On governmental funding, while the members of the Arena Task Force were not compensated and the task force did not have a budget, city employees issued press releases on the plaintiff mayor's stationery (ROR, Exhibits A and B, pp. 73-75) and a city employee attended the April 9 meeting as a member of the task force. (ROR, Exhibit C, p. 76.) This involved expenditure of public funds. The fact that the plaintiff city's employees were members of the Arena Task Force (as well as state employees and officials) also supports a finding of direct government involvement. Finally the Arena Task Force was created by the plaintiff mayor, an agent of a government. The cumulative factors are sufficient to find that the Arena Task Force was a functional equivalent of a public agency. The record supports the conclusion that the Arena Task Force was playing a key government role. See also Meri-Weather, Inc. v. Freedom of Information Commission, 47 Conn.Sup. 113, 788 A.2d 1038 (2000), aff'd, 63 Conn.App. 695, 778 A.2d 1006 (2001) (city agency head directed his staff to establish committee).
The court rejects the contention made by the plaintiffs that the findings of the FOIC were inadequate; the record supports these findings with substantial evidence. (ROR, pp. 73-77.)
See Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 102, 561 A.2d 429 (1989). In addition whether the Arena Task Force performed a government function is only one of the four factors to be considered under the functional equivalent test.
The plaintiffs next argue that Exhibits A-E, relied upon by the FOIC in making findings of fact about the plaintiff mayor's role, were improperly admitted by the hearing officer because they constituted hearsay. Exhibits A and B are press releases issued by the plaintiff mayor, Exhibit C is a list of Arena Task Force members, and Exhibit D and E are Hartford Courant news articles written by defendant Cohen. The court rejects the plaintiffs' contentions based on § 4-178(1) and Salmon v. Dept. of Public Health, 259 Conn. 288, 317, 788 A.2d 1199 (2002): "In advocating for this position, however, the [plaintiffs fail] to recognize that `administrative tribunals are not strictly bound by the rules of evidence and . . . may consider evidence which would normally be incompetent in a judicial proceeding . . . Furthermore, the [plaintiffs ignore] our conclusion in Jutkowitz [v. Dept. of Health Services, 220 Conn. 86 (1991)] that even hearsay evidence, replete with its inherent untrustworthiness, may be considered in an administrative hearing. [ Id. at 108.]" The press releases created by the plaintiff mayor, the member list and newspaper articles were sufficiently reliable and were admitted by the hearing officer as allowed by law.
The plaintiffs next argue that defendant Cohen merely objected to his denial of access to the meeting of April 9, not to subsequent meetings. Therefore, it is contended, that the order of the FOIC, requiring the plaintiffs to re-establish minutes for all meetings of the Arena Task Force, was beyond the scope of the complaint. The record shows, however, that defendant Cohen stated in his complaint to the FOIC that he was contesting the denial of access to the April 9 meeting, as well as seeking access to "all future meetings." (ROR, p. 1.) This statement was adequate to provide the FOIC jurisdiction to consider the legality of the plaintiffs' denying access to both the April 9 meeting and future meetings. § 1-206 (b)(1); Board of Trustees v. Freedom of Information Commission, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 91 503053 (June 18, 1992, Fineberg, J.), citing Wilson v. Freedom of Information Commission, 181 Conn. 324, 341, 435 A.2d 353 (1980).
The plaintiffs argue further that the access-to-meeting provisions of the Freedom of Information Act are affected by the exemption of § 1-210(b)(1) for preliminary drafts or notes. This argument fails because this exemption does not apply to meetings, only to request for records. In addition a "preliminary" document is one containing "data not required or germane to the eventual purpose for which [it] was undertaken and it was thereafter modified to excise the material that was irrelevant to its . . . purpose." Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 343, 559 A.2d 200 (1989). The record here supports the conclusion that the Arena Task Force meetings were not "preliminary."
Presumably the plaintiffs are referring to § 1-225 that requires the meetings of all public agencies to be open and meeting notices posted, § 1-206(b) that establishes a procedure to appeal to the FOIC from the denial of the right to attend a meeting of a public agency, and § 1-200(2) that defines "meeting" as a proceeding of a public agency "to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power."
At oral argument the plaintiffs relied on a "deliberative privilege" similar to § 1-210(b)(1).
Finally, the plaintiffs argue that inadequate notice was given by the defendants to the Arena Task Force of the pending FOIC matter. The record shows otherwise. (ROR, FOIC Notice, p. 8.) In addition, R. Nelson Griebel, on behalf of the Arena Task Force, wrote to the FOIC on September 22, 2008, discussing the proposed final decision, prior to the FOIC discussing the final decision. (ROR, p. 155.) There is thus a basis to find notice to the Arena Task Force of the FOIC proceedings.
The plaintiff mayor also contests the finding that he acted without reasonable grounds and became liable for a civil penalty. § 1-206(b)(2). Findings 23 and 24 conclude that the plaintiff mayor was directly responsible for the denial of access by defendant Cohen. These findings are sufficient for this court to uphold the penalty, because "[i]f the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [agency's] discretion and cannot be successfully challenged unless the discretion has been abused." Pet v. Dept. of Public Health, 228 Conn. 651, 667, 638 A.2d 6 (1994), citing Gibson v. Connecticut Medical Examining Board, 141 Conn. 218, 230, 104 A.2d 890 (1954).
While the plaintiffs have raised grounds regarding applying the Freedom of Information Act in these circumstances, these cannot be considered by the court. They are legislative judgments. The appeal is dismissed.