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Final Decision FIC2012-253
In the Matter of a Complaint by
FINAL DECISION
Robert Fromer,
     Complainant
     against
Docket #FIC 2012-253
Edwin S. Greenberg, Chairman, State of
Connecticut, State Properties Review Board;
Bennett Millstein, Vice-Chairman, State
State of Connecticut, State Properties
Review Board; Bruce Josephy, Secretary,
State of Connecticut, State Properties Review Board; Mark A. Norman, Pasquale A. Pepe, John P. Valengavich, as members, State of Connecticut, State Properties Review Board; and State of Connecticut, State Properties Review Board,
     Respondents
February 27, 2013

     The above-captioned matter was heard as a contested case on November 27, 2012, 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 filed May 9, 2012, the complainant appealed to the Commission, alleging that the re spondents held an executive session for an improper purpose during their meeting of April 26, 2012. The complainant also alleged violations of the Freedom of Information (“FOI”) Act’s requirements concerning the specificity of the meeting’s agenda and the posting of the meeting’s minutes.  The complainant requested the imposition of civil penalties.
     3.  It is found that the Connecticut Department of Administrative Services entered into an agreement to lease property for use by the Judicial Department.  It is found that the agreement required the approval of the respondent board pursuant to §4b-3(f), G.S., which provides, in relevant part:

          The State Properties Review Board shall review real estate acquisitions, sales, leases and subleases proposed by the Commissioner of Administrative Services … Such review shall consider all aspects of the proposed actions, including feasibility and method of acquisition and the prudence of the business method proposed…
     4.  It is found that, pursuant to §4b-3, G.S., the respondent board held a regular meeting on April 26, 2012, the agenda for which provided, in relevant part, as  follows:
          EXECUTIVE SESSION
             3. REAL ESTATE – UNFINISHED BUSINESS
          PRB# 12-105  Transaction/Contract Type: RE/Lease Agreement
          Origin/Client: DAS/JUD
          Statutory Disclosure Exemptions: 4b-23(e); 1-200(6) & 1-210(b)(7)
     5.  It is found that the respondents convened in executive session during the April 26, 2012 meeting to discuss the lease agreement under the agenda item described in paragraph 4, above.
     6.  The complainant alleged that (a) the respondents’ agenda did not fairly apprise the public of the purpose of the executive session, in violation of §1-225(f), G.S.; and (b) the subject of the discussion was not a permissible reason for entering executive session.
     7.  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.
     8.  Section 1-200(6)(E), G.S., permits a public agency to meet in executive session for “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.”
     9.  Section 1-210(b)(10), G.S., exempts from disclosure “[r]ecords … exempted by … the general statutes.”
     10. The respondents claim that §4b-23(e), G.S., prohibited them from disclosing certain records and operated through §1-200(6)(E), G.S., to permit them to meet in executive session.
     11. It is found that the Department of Administrative Services entered into the proposed lease agreement in furtherance of the state facility plan, pursuant to §4b-23, G.S.
     12. Section 4b-23, G.S., defines “facility” as “buildings and real property owned or leased by the state,” and requires the creation of a “state facility plan” that includes long-term and short-term facility needs, and other factors.  Such “state facility plan shall be used as an advisory document for the leasing of property for use by state agencies and departments and for related capital projects.”
     13. Section 4b-23(e), G.S., provides in relevant part as follows:
          Implementation of the state facility plan shall be the responsibility of the Commissioner of Administrative Services who 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 . . . 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 . . . The board, within ninety days after the receipt of the decision of the Commissioner of Administrative Services, shall either accept, reject or request modification of such decision . . . The decision to make public such decision shall rest solely with the Commissioner of Administrative Services 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 . . . (Emphasis added.)
     14. Section 4b-27, G.S., provides in relevant part as follows:
          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 Works1, 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.  (Emphasis added.)

1
Although Public Act 2011-51 amended §4b-23 to substitute the Commissioner of Administrative Services for the Commissioner of Public Works, it did not similarly amend §4b-27, G.S.
     15. It is found that the respondents reviewed the proposed real estate lease agreement as part of the facility plan for the Judicial Department.
     16. It is found that the proposed lease agreement under discussion in the executive session at issue in this case was a “facility plan implementation action” that the Commissioner of Administrative Services decided to approve pursuant to §4b-23(e), G.S.
     17. It is found that the purpose of the executive session was for the respondent board to review such decision of the commissioner, as §4b-23(e), G.S., required.
     18. It is concluded that §§4b-23(e) and 4b-27, G.S., prohibited the respondents from disclosing the commissioner’s decision to approve the proposed lease agreement, and that preservation of the confidentiality of the commissioner’s decision by necessity required confidential discussion of the decision and of the information on which the commissioner relied.
     19. It is concluded, therefore, that the respondents’ executive session was proper.
     20. As for whether the agenda fairly apprised the public of the purpose of the executive session, it is found that requiring the respondents to identify the location of the leased property would defeat the confidentiality requirements of §§4b-23(e) and 4b-27, G.S.
     21. It is found that the respondents’ agenda disclosed the agencies involved in the transaction, as well as the type of transaction to be discussed.  Although the complainant contended that the respondents have a duty not to use acronyms to identify the state agencies involved, it is found that the acronyms used in this case are widely known or easily able to be discovered by the general public.2

2
The Commission agrees, however, that a better practice would be to avoid the use of acronyms in agendas and minutes.
     22. It is concluded that the respondents’ agenda did not violate the FOI Act as alleged by the complainant.
     23. It is also found that the respondents made minutes available to the public within seven days of the meeting, including posting such minutes on the agency website on May 3, 2012.
     24. In light of the Commission’s findings of fact and conclusions of law in paragraphs    9 – 19, above, it is not necessary to consider whether §1-210(b)(7), G.S., supported the respondents’ executive session.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The complaint is dismissed.
        
Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 2013.
__________________________
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
Edwin S. Greenberg, Chairman, State of
Connecticut, State Properties Review Board;
Bennett Millstein, Vice-Chairman, State
State of Connecticut, State Properties
Review Board; Bruce Josephy, Secretary,
State of Connecticut, State Properties Review
Board; Mark A. Norman, Pasquale A. Pepe,
John P. Valengavich, as members, State of
Connecticut, State Properties Review Board; and
State of Connecticut, State Properties Review Board
c/o Erin O’Brien Choquette, Esq.
Department of Administrative Services
165 Capitol Avenue
Room 491
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2012-253/FD/cac/2/27/2013