The above-captioned matter was heard as a contested case on March 25, 2013, 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(a), G.S.

     2.  By letter of complaint filed September 4, 2012, the complainants appealed to the Commission, alleging that the respondents violated the open meetings provisions of the FOI Act when, on August 9, 2012, they heard privately Level III grievances filed by or on behalf of two public employees; and violated the open records provisions of the FOI Act when they redacted the names of the grievants from copies of the grievances provided to the complainants. The complainants requested the imposition of civil penalties against the individual respondents.

     3.  It is found that the respondents met on August 9, 2012 to hear testimony in evidentiary hearings concerning two grievances, one concerning front door secretarial coverage, work schedules, payment for days worked, and hiring of substitutes; and the second concerning the retroactivity of a collective bargaining provision concerning the respective costs to the employee and employer of an individual employee’s health insurance premium.

     4.  It is found that the respondents based their decision to close the hearings to the public on the objection of the collective bargaining representative, and upon the belief that an employee’s health records might be discussed in the second matter concerning payment of the premium.

     5.  It is found that the respondents made copies of the grievances available to the complainants, including the opportunity to photograph them, but redacted the names of the grievants from those copies.

     6.  Section 1-200(2), G.S., provides in relevant part:

          “Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.  “Meeting” does not include:  …  strategy or negotiations with respect to collective bargaining ….

     7.  Section 1-225(a), G.S., provides in relevant part that “(a) The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

     8.  Section 1-200(6) provides in relevant part:

          “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 ….

     9.  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.

     10. Section 1-210(a) provides in relevant part:

          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.

     11. Section 1-210(b)(9), G.S., provides that disclosure is not required of “[r]ecords, reports and statements of strategy or negotiations with respect to collective bargaining ….

     12. It is concluded that the grievances at issue are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

    

     13. In Bloomfield Education Association v. Frahm, 36 Conn. App. 384 (1984), the Appellate Court concluded that a grievance filed under a collective bargaining agreement is not a record, report or statement of strategy or negotiations with respect to collective bargaining, and therefore is not exempt from disclosure under §1-210(b)(9), G.S.

    

     14. In Waterbury Teachers Assocation v. FOIC et al., 240 Conn. 385 (1997) the Supreme Court concluded that public agencies must provide public access to the portions of meetings where testimony and evidence are received concerning grievances filed under collective bargaining agreements, because the “hearing” portion of an administrative proceeding must be open to the public pursuant to Board of Police Commissioners v. FOIC, 192 Conn. 183, 190 (1984), even if in some circumstances the deliberative portion of the meeting may be properly closed.

    

     15. Although the respondents may have been legitimately concerned that an employee’s health records might be discussed in the context of the grievance concerning the health insurance premium payment, it is found that no health or medical records of the employee were discussed in executive session by the respondents.

    

     16. It is found that the respondents learned, at an FOI workshop on September 11, 2012, that their actions did not conform to the requirements of the FOI Act, and indicated at the hearing on this matter that their actions would have been different had they known the applicable law. The respondents conceded to the violations of the FOI Act, and pledged at the hearing to conform their actions to the requirements of the FOI Act in the future.

     17. It is concluded that the respondents violated the provisions of §§1-225(a) and 1-210(a), G.S., as alleged.

     18. With respect to the complainant’s request for the imposition of a civil penalty, §1-206(b)(2), G.S., provides in relevant part:

          … upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

     19. It is found that the denial of the complainant’s rights to attend the evidentiary portion of the grievance hearings, and to receive a copy of the grievances with the grievants’ names unredacted, was based on the respondents’ longstanding practice, their beliefs that they should defer to the desire of the collective bargaining representative, and their concern for the privacy of the grievants. While the respondents’ actions were incorrect as a matter of law, it is found that their actions were not entirely unreasonable.

     20. It is therefore concluded that civil penalties are not warranted pursuant to §1-206(b)(2), G.S.
  
     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(a) and 1-210(a), G.S.

     2.  If they have not already done so, the respondents shall forthwith provide the complainants with unredacted copies of the grievances discussed at the August 9, 2012 hearings.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 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:

Bruno Matarazzo, Kevin Litten and the
Waterbury Republican American
c/o Thomas C. Parisot, Esq.
Secor, Cassidy & McPartland, P.C.
41 Church Street
P.O. Box 2818
Waterbury, CT  06723-2818

William Joslyn, Director of Student and Professional Services,
Torrington Public Schools; Fiona Cappabianca, Chairwoman,
Grievance Committee, Torrington Public Schools; Ellen Hoene,
Christopher Rovero and Karl Brady, Members, Grievance
Committee, Torrington Public Schools; and Grievance
Committee, Board of Education, Torrington Public Schools
355 Migeon Avenue
Torrington, CT  06790

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-489/FD/cac/7/10/2013