Editorial: A Disputed FOI Question Regarding ‘Illegal Meetings’

In February, the Board of Selectmen appointed a seven-member committee and tasked it with one of the most consequential jobs assigned to a municipal body: Study the physical condition, uses and capital needs of all 56 town-owned buildings in New Canaan (except the school district’s) and report back to the town.

As a one-person news operation, I often make difficult decisions about what to cover, and forgo coverage of entire boards or commissions—I rarely covered the Charter Revision Commission, for example, never go to Deer Committee meetings and did not cover the Playhouse Committee after its second meeting.

But the Town Building Evaluation & Use Committee—an advisory body—was to make recommendations (in a report originally scheduled for September delivery) with wide implications for the town, including whether to raze, sell, invest in or use differently buildings such as Waveny House, Vine Cottage, the former Outback Teen Center and Irwin House.

I decided to attend every meeting I could and report back to our readers on what they were discussing. My goal was to clue people in as to the committee’s thought process as its work unfolded.

The committee met regularly through June. My coverage of its meetings was not received enthusiastically by certain members of the group. Part of the reason for that is that the committee’s work was very much in progress through its early months—the group brainstormed as it gathered data about these town buildings. In some cases, press coverage of an idea, if reported irresponsibly—that is, without context—creates practical problems for the committee’s volunteer members, by sounding alarms for residents. In other cases, plain unwelcome news could reach members of the community who may not otherwise immediately hear it. For a working committee, the best scenario is that all recommendations are introduced in the context of a fleshed-out, comprehensive report.

This push-and-pull between a news outlet and government body is typical of their dynamic—one side wants to get good information out quickly, the other wants to control its delivery in order to work most effectively.

Soon after one attempt in late June to get the press and public “out of the room” by moving an agenda item of the committee’s ongoing work into executive session—a failed attempt, corrected after I called Town Hall, as the move likely would have violated Freedom of Information law—the committee stopped meeting altogether.

Ultimately, it would not meet for three months, until late-September, the very month the committee originally was to deliver its report.

As September approached, I didn’t know whether it had been disbanded, finished its work or went on hiatus. It seemed strange that nothing was happening with such an important group.

On Sept. 12, I emailed committee co-chair Penny Young to ask whether the group’s work had come to a hard stop. I received no immediate reply, and that afternoon filed a FOI request for her committee-related emails—and those of her fellow co-chair, Amy Murphy Carroll—from the group’s last meeting (June 28) to the current date (Sept. 12).

My goal was to glean what had happened over the summer.

The next day, the then-first selectman stepped in to set up a meeting with me and the co-chairs–ultimately, it ended up a phone call between me and Carroll. On that call, Carroll with characteristic forthrightness answered the question I already had asked Young, telling me that in fact the committee’s work had continued in the summer as its “study teams”—the group early on had divvied up the 56 buildings among two-person teams—visited the town-owned buildings to gather up its information.

I told Carroll that those site visits rightly should have been publicly noticed as official subcommittee meetings, under FOI law. She disagreed, and we could not see eye-to-eye on the question.

The next day, I phoned the FOI Commission to say I intended to file a complaint, described the situation and was told to specify that the town had conducted illegal meetings.

On Tuesday of this week, I traveled to the FOI Commission’s offices in Hartford to sit before Commission Counsel Valicia Harmon—with Town Attorney Ira Bloom, Young and Carroll down the table from me—so that the state agency could decide this question of whether the “team” fact-finding missions or subcommittees in fact did constitute meetings of a public agency, under FOI law.

For Young and Carroll, and perhaps for others who serve on similar boards, the notion is borderline absurd. Because the site visits themselves often included a third person—say, a department head from the building in question—it can be tricky to arrange them ahead of time, and public meeting agendas must be posted at least 24 hours in advance. As the co-chairs have pointed out, had the town hired a third-party company to do this work that the volunteer members of the committee have taken on, then not only would that cost the taxpayers money, but the site visits in that case would not be FOI-able public meetings.

As a practical matter, those who serve on committees such as this must discuss their shared work with fellow members of the group in order to get it done, and the idea that all such gatherings must be officially noticed is cumbersome, and prohibitively so, some might say.

Valid points, valid concerns.

Perhaps these are, too: First, what is asked, said and seen at site visits such as these could provide the tax-paying public important, relevant information about the committee’s consequential work. Second, no one here seems to know just what constitutes a public agency or meeting, and I believe the town, local media and public need clarification. In covering New Canaan as a reporter for several years, I will say that this is far from the first time that what I would call a “site visit” has not been publicly noticed, meaning no member of the public knew it was happening.

The town offered, prior to the start of the hearing process, to accept that it had failed to notice public meetings in this committee’s case and to adjust its own FOI training along those lines.

I rejected that offer (though naturally I hope the training improves). Here’s why: This decision about what constitutes a subcommittee’s public meeting is not for me to make, nor is it Bloom’s decision or Young’s or Carroll’s. The only agency that can make this determination is the FOI Commission itself, and I want a formal answer.

It’s a legal question, which is another way of saying it’s a matter of interpretation. These roles in town government, the town attorney job itself, are turnover positions. Who’s to say that someone in five years may not have a different read on the FOI law and decide that no, in fact these types of subcommittee meetings are not public? I want a decision, written on a piece of paper, and I can’t help but think that if someone had brought this question to an FOI Commission hearing 10 or 15 years ago, then I wouldn’t have to do it now.

At the hearing itself, Bloom argued that the FOI Commission should dismiss my claim, saying essentially that I had missed the deadline for filing it. (He also said he would file a brief arguing that the two-person outings of the committee do not represent public meetings.)

Ultimately, if the FOI Commission finds that I missed the deadline for filing the complaint—it hinges on a question of just when I identified the violation—then the state agency will not adjudicate the core question of whether the two-person site visits were themselves subject to FOI law as public subcommittee meetings.

I think that would be a shame, given that we appear close to getting a definitive answer. At the same time, given the town’s offer of a mea culpa prior to the hearing, perhaps this process already is moving New Canaan toward greater compliance with sunshine laws, regardless of the FOI Commission’s finding.

In the end, I believe that those on every side of this issue want what is best for New Canaan. And I hope we can agree that no version of that includes operating without transparency.

Here’s another way of saying that: In one of the emails obtained through my FOI request, Young called for individual members of the committee to meet with her and Carroll to discuss their work and specified that those three-person meetings would happen without the press present.

“Checking in to see status of reports … Please submit,” Young said in Aug. 15 email. “Amy and I would like to sit with each of your [sic] individually prior to calling a full committee meeting (with press present!). Let me know your availability.”

Whatever the FOI Commission decides, let’s agree to be inclusive, communicate openly and bring people into the municipal government’s process rather than try to keep them out.