Town of Windham v. Freeddom of Information Comm'n

• Decision Date: 15 June 1999
• Citation: 732 A.2d 752
• Court: Connecticut Supreme Court
• Parties: (Conn. 1999) TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION ET AL. 15961

732 A.2d 752 (Conn. 1999)

TOWN OF WINDHAM v. FREEDOM OF INFORMATION COMMISSION ET AL.

15961

Connecticut Supreme Court

Argued January 14

June 15, 1999

Clifton A. Leonhardt, chief counsel, with whom, on the brief, were Mitchell W. Pearlman, general counsel, and Victor R. Perpetua, appellate attorney, for the appellant (named defendant).

Richard S. Cody, for the appellee (plaintiff).

Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Callahan, C. J., and Borden, Berdon, Norcott and Peters, Js.

Per Curiam

OPINION

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.¹

The appeal is dismissed.

In this opinion CALLAHAN, C. J. , and BORDEN, NORCOTT and PETERS, Js., concurred.

BERDON, J., Dissenting.

Article first, §§ 2, of the Connecticut constitution provides in part that "[a]ll political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit . . . ." By refusing to consider the question that we certified, the majority of this court commits a silent act of violence against this portion of our constitution.

In an effort to hold our government accountable to the inherent authority of the people, the legislature enacted the Freedom of Information Act (act), General Statutes §§ 1-200 et seq. (formerly §§ 1-18a).¹ "The overarching legislative policy of the [act] is one that favors the open conduct of government and free public access to government records. . . . Our construction of the [act] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. . . . In light of these principles, the statutory definition of public meetings contained in [§§ 1-200 (2)] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings." (Citations omitted; emphasis added; internal quotation marks omitted.) Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 712-13, 663 A.2d 349 (1995).

In the present administrative appeal, the Appellate Court held that the act tolerates the following sequence of events: several members of a public agency conspire behind closed doors in order to hammer out a secret plot to determine a substantive decision that will be made at a subsequent public meeting. More specifically, the Appellate Court held that the act tolerated the actions of four members of the Windham board of selectmen (board), who conducted a secret meeting at which they conspired to go into executive session in order to discuss a landfill contract (secret meeting).² At the public meeting that occurred the following day, this conspiracy was executed without a hitch.

The Appellate Court decided this case on the following basis: the selectpersons who convened the secret meeting did not constitute a quorum of the board and, therefore, there was no meeting within the meaning of the first sentence of §§ 1-200 (2).³ Windham v. Freedom of Information Commission, 48 Conn. App. 529, 531, 711 A.2d 741 (1998). This holding contains two grave infirmities. As a matter of substantive law, it undermines the magnificent purpose of the act and, as the defendant freedom of information commission (commission) put it, brings us back to the politics of the "proverbial `smoke filled room' . . . ." As a matter of procedure, this holding has nothing to do with this case. It was neither argued nor briefed before the commission, the trial court, or the Appellate Court. In fact, the trial court explained that "the [plaintiff] does not dispute that the [secret meeting] would fit into the general definition of meeting contained in the first sentence of [§§ 1-200 (2)]."⁴ Windham v. Freedom of Information Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV96005256S (March 20, 1997), p. 2. For these reasons, I would not reach this issue.

Instead, I would reverse the Appellate Court on the following ground, which has the benefit of actually having been litigated by the parties: the selectpersons are mistaken in their claim that the secret meeting is beyond the reach of the act because, pursuant to the second sentence of §§ 1-200 (2), a "`[m]eeting' shall not include . . . communication limited to notice of meetings of [a] public agency . . . ."⁵ As the commission and the trial court both emphasized, the secret meeting "not only included communication of notice of an agenda item, but [also] Discussion of why such [an] item needed to be considered in executive session, and reaching a consensus on an executive session. . . . A brief Discussion as to the reasons necessitating an executive session was held.

"[The secret meeting was] clearly not limited to notice of an agenda item. The Discussion considered the merits of the motion and gathered support for the motion." Windham v. Freedom of Information Commission, supra, Superior Court, Docket No. CV96005256S, p. 3.

As the trial court cogently pointed out, "the reasons why the landfill contract was to be considered in executive session should have been discussed in open public session . . . . It is not consistent with the open conduct of public business when...