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Final Decision FIC2011-141
In the Matter of a Complaint by
FINAL DECISION
Robert Fromer,
     Complainant
     against
Docket #FIC 2011-141
Director, State of Connecticut, State
Properties Review Board; and
State of Connecticut, State Properties
Review Board,
     Respondents
February 22, 2012

The above-captioned matter was heard as a contested case on July 26, 2011 at which time the complainant 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 letter dated March 16, 2011, the complainant appealed to the Commission alleging that the respondents violated §§1-200(6)(D), and 1-225(f), G.S., of the Freedom of Information (“FOI”) Act with respect to the executive session held during its March 10, 2011 meeting. The complainant requested that this Commission declare null and void the vote taken during the executive session.
3. It is found that the Connecticut Department of Public Works entered into an agreement whereby the state agreed to convey certain surplus property identified as the Seaside Regional Center property (the “purchase and sale agreement”).  It is found that the agreement required the approval of the respondent board pursuant to §4b-3, G.S., which provides, in relevant part:

     (f) The State Properties Review Board shall review real estate acquisitions, sales, leases and subleases proposed by the Commissioner of Public Works, the acquisition, other than by condemnation, or the sale or lease of any property by the Commissioner of Transportation under subdivision (12) of section 13b-4, subject to section 4b-23 and subsection (h) of section 13a-73 and review, for approval or disapproval, any contract for a project described in subsection (h) of section 4b-91. Such review shall consider all aspects of the proposed actions, including feasibility and method of acquisition and the prudence of the business method proposed. The board shall also cooperate with and advise and assist the Commissioner of Public Works and the Commissioner of Transportation in carrying out their duties. The board shall have access to all information, files and records, including financial records, of the Commissioner of Public Works and the Commissioner of Transportation, and shall, when necessary, be entitled to the use of personnel employed by said commissioners. The board shall approve or disapprove any acquisition of development rights of agricultural land by the Commissioner of Agriculture under section 22-26cc.
4. It is found that, pursuant to §4b-3, G.S., the respondent board held a regular meeting on March 10, 2011, the agenda for which provided, in relevant part, as  follows:
     EXECUTIVE SESSION
          3. REAL ESTATE – UNFINISHED BUSINESS
     PRB# 10-318  Transaction/Contract Type: RE/Purchase & Sale
     Origin/Client: DPW/DCF
     Statutory Disclosure Exemptions: 4b-23(e); 1-200(6) & 1-210(b)(7)
5. It is found that, during the March 10, 2011 meeting, the respondents convened in executive session to discuss the purchase and sale agreement under the agenda item described in paragraph 4, above.
6. It is found that the minutes of the March 10, 2011 meeting describe the stated purpose for the executive session as “a discussion of the subject Purchase and Sale Agreement.”
7. It is found that while information regarding the conveyance of the Seaside Regional Center property was available on the Office of Policy and Management’s website, there is no information on the website, the agenda or the minutes that identifies the property discussed during that executive session as the Seaside Regional Center property.
8. At the hearing on this matter, the complainant contended that:
     (a) the respondents’ agenda did not fairly apprise the public that the purpose of the executive session was to discuss the sale of the Seaside Regional Center property which is in violation of §1-225(f), G.S.; and
     (b) because the respondents were not a party to the sale at issue and because there was no threat of the purchase price increasing since it had already been negotiated, the respondents had not met the conditions to convene in executive session under §1-200(6)(D), G.S.
9. The respondents contended at the hearing on this matter that the agenda and the executive session were proper. The respondents maintain that the vagueness of the agenda and the convening of the executive session were permitted pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S., and §§4b-23(e) and 4b-27, G.S.  The respondents contended that the provisions in §4b-23(e), G.S., bar the disclosure of any information regarding the agreement or discussion of it publicly.  The respondents contended that by drafting the agenda item as described in paragraph 4, above,  and convening in executive session pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S., the respondent board is able to meet its obligation to maintain the confidentiality of the agreement and its obligations under the FOI Act. 
10. With respect to the complainant’s allegation described in paragraph 8a, above, §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, in such agency's regular office or place of business . . . . 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.

11. Section 1-225(f), G.S., provides in relevant part that:
     A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.
12. This Commission determined, in contested case Docket #FIC 1990-048; Trenton Wright, Jr. v. First Selectman, Town of Windham, that the phrase "executive session - personnel matters" was too vague to communicate to the public the business to be transacted.
13. 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.
14. 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 apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing."
15. However, in Docket #FIC 2007-668; Bradshaw Smith v. Donald S. Trinks, as Member, Town Council, Town of Windsor; and Town Council, Town of Windsor, the Commission determined that requiring the respondents to name in their agenda the property they are intending to discuss in executive session, where publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price, would defeat the purpose of §1-200(6)(D), G.S.
16. Section 1-200(6)(D), G.S., provides in relevant part that:
     “Executive sessions” means a meeting of a public agency at which the public is excluded …[for the] 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…
17. Counsel for the respondents represented at the hearing that there was a possibility that open discussion or publicity of the agreement could have jeopardized the sale, however, it is found that the respondents produced no evidence in support of that claim.
18. With respect to the complainant’s allegation described in paragraph 8b, above, §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 in relevant part 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:  …  (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. Section 1-210(b)(7), G.S., provides in relevant part that:
     Nothing in the Freedom of Information Act shall be construed to require disclosure of: The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision….
21. Counsel for the respondents also stated that, contrary to the complainant’s allegation, the respondent board doesn’t just review the purchase and sale agreements, but that it also reviews real estate appraisals, engineering and feasibility estimates as part of its review of any purchase and sale agreement. But it is found that the respondents did not produce any evidence in support of this claim, either.  
22. The burden of establishing the applicability of an exemption rests upon the agency claiming the exemption and this burden requires more than conclusory language, generalized allegations or mere arguments of counsel.1  

1
See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324; 435 A.2d 353 (1980).
23. It is found that the respondents failed to prove the likelihood of any increase in price to any party to the agreement if the respondent board named the property on the agenda for the March 10, 2011 meeting or if it stated the name of the property in the reason for convening the executive session.
24. It is found that the respondents also failed to prove that any of the records discussed in executive session comprised “real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply.” It is found that the respondents were not acquiring any property, no public supply or construction contracts were involved, and no engineering or feasibility estimates were made for or by the respondent.
25. Therefore, it is concluded, based on the facts and circumstances of this case, that the respondents failed to fairly apprise the public of the business to be transacted at the March 10, 2011 meeting within the meaning of §1-225(c) and (f), G.S., by failing to name the property on the agenda and prior to convening in executive session.
26. With respect to the respondents’ contention that the provisions in §§4b-23(e) and 4b-27, G.S., bar them from disclosing any information regarding the agreement, §4b-23(e), G.S., provides in relevant part as follows:
     State facility plan. Implementation. Responsibility of Secretary of the Office of Policy and Management, Commissioner of Public Works and Properties Review Board. Regulations. … Implementation of the state facility plan shall be the responsibility of the Commissioner of Public Works. He shall conduct a study of each proposed facility in the plan to determine: (1) The method of choice for satisfying each such facility need, (2) the geographical areas best suited to such need, (3) the feasibility and cost of such acquisition using a life-cycle cost analysis as established by subdivision (2) of subsection (b) of section 16a-38, (4) the degree to which the plan promotes the goals addressed in subsection (e) of section 4b-31 and (5) any other relevant factors. Said commissioner shall review and approve each facility plan implementation action and shall submit to the Properties Review Board a list of each such action approved and the method and plan by which it shall be accomplished. Said commissioner shall endeavor to locate human services agencies in the same buildings as municipal and private agencies that provide human services. The results of said commissioner's study along with all supportive materials shall be immediately sent to the Properties Review Board. The board shall meet to review the decision of the commissioner and may request the commissioner or any member of his department, and the head of the requesting agency or any of his employees to appear for the purpose of supplying pertinent information. Said board shall call a meeting within two weeks of the receipt of the commissioner's decision, and may meet as often as necessary, to review said decision. The board, within ninety days after the receipt of the decision of the Commissioner of Public Works, shall either accept, reject or request modification of such decision, except that when more time is required, the board may have a ninety-day extension of time, provided the board shall advise the Commissioner of Public Works in writing as to the reasons for such extension of time. If such decision is disapproved by the board, it shall so inform the commissioner along with its reasons therefor, and the commissioner shall inform the head of the requesting agency and the Secretary of the Office of Policy and Management that its request has been rejected. If such decision is approved by the board it shall inform the commissioner of such approval and the commissioner shall immediately communicate his decision to the head or acting head of such governmental unit and to the Secretary of the Office of Policy and Management and shall set forth the procedures to be taken to accomplish the results of such decision. The decision to make public such decision shall rest solely with the commissioner both as to time and manner of disclosure, but in no event shall such period exceed one year. The commissioner shall, when he deems it to be in the public interest, authorize the disclosure of such information; however, in the absence of such authorization, any unauthorized disclosure shall be subject to the criminal provisions of section 4b-27. All decisions made by the commissioner under the provisions of this section shall require review by the board.…
27. Section 4b-27, G.S., provides in relevant part as follows:
     Disclosure of state realty needs. Unauthorized disclosure class A misdemeanor. No person affiliated with any requesting agency shall discuss outside of that agency its real estate needs or interests prior to formal notification to the commissioner, and in no event without the authorization and supervision of the Commissioner of Public Works, which authorization shall be filed with the review board; nor shall anyone with knowledge of said needs gained as a result of his employment by the state disclose any information regarding state real estate needs to anyone except as authorized by the commissioner. Anyone who discloses any such information without authority by the commissioner before said information is made public by the commissioner shall be guilty of a class A misdemeanor.
28. It is concluded that §§4b-23(e) and 4b-27, G.S., cited above, pertain to state agency and department facility needs and requests and the facility plans developed to meet those needs and requests. It is also concluded that those provisions restrict the disclosure of any decision to approve, or disapprove, such plans to the Commissioner of Public Works.
 
29. It is found, however, that the respondents were not reviewing a facility plan or any real estate need of a state agency or department, but rather were reviewing an agreement that would have divested the State of Connecticut of ownership of its surplus property. 
30. It is concluded therefore that §§4b-23(e) and 4b-27, G.S., are not applicable in this case.
31. It is concluded therefore that the respondents violated the FOI Act by failing to fairly apprise the public of the purpose of the March 10, 2011 executive session either on the agenda for the meeting or prior to convening the executive session at the meeting.  Further, it is concluded that the respondents violated the FOI Act by convening in executive session for a purpose not permitted under §1-200(6), G.S.
32. With respect to the complainant’s request that votes taken at the March 10, 2011 meeting regarding to the Seaside Regional Center property be declared null and void, §1-206(b)(2), G.S., provides in relevant part that:
     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 and may require the production or copying of any public record….
33. It is found that by discussing the agreement to the sale of the Seaside Regional Center property in executive session, the respondents denied the public the right to attend that portion of its March 10, 2011 meeting.  However, this Commission does not find it appropriate to invalidate or nullify the votes taken at that meeting because such a form of relief would negatively impact innocent parties. Therefore, the complainant’s request in that regard is denied.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. Henceforth, the respondents shall strictly comply with the requirements of §§1-225 and 1-200(6), G.S.

2. The respondent board shall generate minutes of the discussion held during the March 10, 2011, executive session described in paragraph 4 and 5 of the findings, above, which minutes, at the minimum, shall record the property being discussed, the substance of the agreement and any votes taken, or consensus reached, during the executive session. A copy of such minutes shall be provided to the complainant, free of charge, within 7 days of the notice of the final decision in this case.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 22,  2012.
__________________________
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:
Robert Fromer
P.O. Box 71
Windsor, CT  06095
Director, State of Connecticut,
State Properties Review Board; and
State of Connecticut, State Properties
Review Board
c/o Erin O’Brien Choquette
Senior Policy Advisor
Department of Administrative Services
165 Capitol Avenue, Room 491
Hartford, CT  06106
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-141/FD/cac/2/22/2012