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Final Decision FIC2013-383
In the Matter of a Complaint by
FINAL DECISION
John Mosby,
     Complainant
     against
Docket #FIC 2013-383
Board of Directors, NEON Inc.;
and NEON Inc., 
     Respondents
April 9, 2014

     The above-captioned matter was scheduled to be heard on January 15, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts, and presented exhibits and argument on the complaint.  In addition, the complainant testified.  The respondents tendered 384 of pages of records to the complainant in response to his Freedom of Information (“FOI”) request.  Thereafter, the parties jointly moved to continue the hearing to a new date, so that the complainant could review the records provided to him.  The parties’ joint motion was granted. 
     On February 21, 2014, the complainant appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents did not appear. 
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 letter dated May 9, 2013 and filed May 16, 2013, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act in the following ways:
a. By convening in an executive session on May 8, 2013 to discuss grant funding, which session lasted two to three hours, and
b. By placing an action item for public comment on the May 8, 2013 after the executive session, which resulted in the public leaving and not commenting.
     3.  Thereafter, in response to a notice from this Commission assigning an ombudsman to the case, the complainant filed another appeal.  This subsequent appeal was treated as an amendment to the original appeal dated May 9, 2013, see ¶ 2, above, and given the same docket number.  Accordingly, by letter dated September 6, 2013 and filed September 6, 2013, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act in the following ways: 
a. By denying his request for copies of bank statements and outstanding checks related to an $800,000 item mentioned in a state audit report;
b. By denying his request for copies of records concerning the salary and benefit information for the top earners at “Ben Franklin Nath Ely School,” and
c. By denying his request for copies of state audit reports from 2011, 2012, and 2013. 
     4.  Section 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.
     5.  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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
     6.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  It is found that the records described in paragraph 3, above, are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 
     8.  It is found that, on September 6, 2013, the complainant requested the respondents provide him with copies of the records described in paragraph 3, above.
     9.  In accordance with the complainant’s testimony from the January 15, 2014 contested case hearing, it is found that, when the respondents contacted the complainant to discuss the request, the complainant was on vacation.  It is further found that, when the complainant returned from vacation, he met with the respondents and discussed his request. 
     10. It is found that, on June 15, 2014, the respondents provided the complainant with 384 pages of responsive records.  It is found that the respondents waived the fee for these records.
     11. At the February 21, 2014 continued contested case hearing, the complainant admitted that the records provided to him satisfied his request described in paragraphs 3.b, and 3.c, above, but contended that the records did not satisfy his request described in paragraph 3.a.
     12. When the hearing officer inquired as to why the complainant believed that the records provided to him did not satisfy the request described in paragraph 3.a, the complainant raised his voice, and threw papers down on the hearing table.  In fact, the complainant became so loud that two employees from a neighboring state agency heard the complainant, and quickly entered the hearing room, where they remained for the duration of the hearing.
     13. It is the complainant’s position that the records provided to him by the respondents do not satisfy the request described in paragraph 3.a, above, because he did not like the format of the records.  It is found that the respondents provided the complainant with copies of the actual bank statements, but that the complainant wanted the respondents to provide him with a chart, which listed such things as 1) the amount of the check, 2) the check number, 3) the payee, and 3) the date such check cleared.  
     14. It is found that, in the past when the complainant has requested that the respondents prepare a chart for him, the respondents have honored such a request and have provided him with a chart.
     15. It is found, however, that the complainant’s September 5, 2013 request did not specify that the complainant desired a chart.  It is further found that the complainant never mentioned such a chart at the January 15, 2013 contested case hearing, at the time the respondents provided him with the records. 
     16. It is found that the records provided to the complainant were responsive and satisfied his request.
     17. It is concluded that the respondents are not required to create records in response to FOI requests, and that therefore they did not violate the FOI Act as alleged in paragraph 3.a, above.
     18. 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. . . .
     19. Section 1-200(6), G.S., provides as follows:
“Executive sessions” means 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 security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by the state or a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would adversely impact the price of such site, lease, sale, purchase or construction 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.
     20. With regard to the complaint described in paragraph 2.a, above, it is found the respondents held a regular meeting on May 8, 2013.
     21. It is found that the agenda for the May 8, 2013 meeting included the following item of discussion:  “IV. Executive Session:  Mayor Moccia – Grant Funding.” 
     22. It is found that, pursuant to §1-200(6), G.S., grant funding is not a permissible topic for an executive session discussion.
     23. It is therefore concluded that the respondents violated the provisions of §1-200(6), G.S.
     24. With regard to the complaint described in paragraph 2.b, above, the Commission notes that, while meetings of a public agency are required to be open to the public, the FOI Act itself does not require a public agency to permit members of the public to speak or comment at its meetings.  Accordingly, whether time for public comment is allowed, or where such an action item appears on a public agency’s meeting agenda, is within the public agency’s discretion.
     25. Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 2.b, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The respondents shall strictly comply with the requirements of §1-200(6), G.S.   
Approved by Order of the Freedom of Information Commission at its regular meeting of April 9, 2014.
__________________________
Cynthia A. Cannata
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:
John Mosby
P.O. Box 1111
Norwalk, CT  06856
Board of Directors, NEON Inc.;
and NEON Inc.
98 South Main Street
Norwalk, CT  06854

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-383/FD/cac/4/9/2014