The subtleties of FOI are explained

FALLS VILLAGE — Bruce Adams, first selectman of Kent, asked if, by carpooling with his fellow selectmen, he had convened an illegal meeting of the board.

“No” was the answer from Tom Hennick, the public education officer for the Connecticut Freedom of Information Commission.

Hennick was at Housatonic Valley Regional High School Tuesday, Jan. 24, to talk about the rules and responsibilities of members of boards and commissions under the state’s Freedom of Information Act (FOIA), passed in 1975.

He began by saying that the FOIA, born in a post-Watergate atmosphere of disillusionment with government, is “not necessarily clear, crisp and concise. There are gray areas.”

He offered this caution: “A complaint doesn’t mean you’re wrong — it means you have a different interpretation.”

“It’s really about access to public meetings and public records” — not about running a license plate number, as someone once requested.

Hennick said that boards must be careful not to get lackadaisical about procedures. “People say, well it’s just a workshop, a task force, we’re just chatting informally ...

“When you gather to do your work, it’s a meeting.”

And if it’s a meeting it must be warned (that is, a notice must be posted in a public spot such as online or at town hall, at least 24 hours ahead of time).

The same holds true for committees or subcommittees, which may not require a quorum but still function as a public agency.

So what happens if there is no quorum — the minimum number of members required to conduct business?

Hennick said that if there is no quorum but public business is still discussed, however informally or inadvertently, at a minimum some record should be kept and made available.

He always advises boards to go through the entire process of notice, having an open meeting and recording minutes.

He gave a “benign example” of a board of education holding an awards ceremony at a high school. It was winter, the roads were bad, and the board did not have a quorum.

They did have a gymnasium full of kids and parents, however. So they went ahead and opened the meeting and then, because there was no quorum, adjourned. Then they gave out the awards, and kept a record of the entire thing.

As to posting notices of meetings, Hennick said the only electronic requirement at the moment is for special meetings, which must be warned online.

“The Legislature drew back on online requirements, but boards did it anyway and found it made life easier,” Hennick said.

Meetings and minutes

There are three types of meetings: regular, special and emergency, and the rules differ for each.

In a regular meeting (such as a school board that meets on the first Monday evening of the month) the agenda must be posted 24 hours in advance and may be changed by a vote of two thirds of the board.

A special meeting’s agenda, also under the 24-hour rule, cannot be modified once posted. Hennick advised that special meeting agendas be as specific as possible.

Emergency meetings are tricky,  Hennick said. “The bar for what constitutes an emergency is high, and the law does not recognize an ‘oops.’”

He cited the tangled case of a board of selectmen who convened an emergency meeting on a Saturday morning to fire an assistant fire chief.

Emotions were running high, and the selectmen got themselves tangled up to a considerable extent. Eventually the case got to the state Supreme Court, where the town lost.

“So someone was fired and/or quit at a meeting that never happened,” as Hennick summed up. “They should have thought it through.”

So what is an emergency?

Storms, snow piling up on school roofs, that sort of thing, Hennick said. And he advised that within 72 hours notice be made public of who attended, what the emergency was and what action was taken.

An often-asked question is on the posting of minutes that have not been approved by the issuing board. Hennick said that, under the FOIA, minutes do not have to be approved before they are posted.

Hennick also said that FOIA does not guarantee the right to speak at a meeting. “Attend, yes. Speak, no. Boards have a right to control the meeting.”

He recommended keeping public comment to two or three minutes, to keep meetings manageable.

Executive session

Executive sessions are another feature of public meetings not widely understood. Hennick said that a board must always vote to go into executive session, by a two-thirds majority, and the executive session must be noticed, even if it is the only thing on the agenda.

And during an executive session, board members can only discuss the matter, not take action. The executive session must be closed and the open, public meeting reconvened before any action can be taken.

The five reasons for executive sessions: personnel matters; pending litigation; security matters; sale of property; and when discussing the contents of documents the board believes are exempt from disclosure.

With a personnel matter, the person under discussion must receive notice — and has the right to say he or she wants to hold the discussion in public.

A board can invite anyone to an executive session, but must dismiss him or her before deliberating.

There are some exceptions in the law, including the curious concept of a “non-meeting” — meetings that for FOIA purposes are not meetings.

Hennick gave two examples: a discussion of collective bargaining strategy, or an executive level search committee.

And then there’s the caucus, which allows members of the same board and political party to meet. Hennick called it “a giant loophole.”

“That makes no sense,” said Adams.

“The Legislature did that,”  Hennick said.

Electronic communication

The FOIA was written in an age when “electronic communication” meant the telephone. Hennick said the law was clear that “serial meetings” — a series of phone calls between board members — were not kosher.

“But now we’re talking email, texting, Facebook,” Hennick said.

But the law still applies. “It doesn’t mean you can’t state an opinion. The problem is when conversations become deliberations and then meetings.”

Perhaps to the disappointment of some in the audience, Hennick did not provide a hard and fast rule for email communications between board members. He simply said, “Be judicious.”

He urged board members to remember that “it doesn’t matter where you create a record in the public’s business.” If a board member conducts all town meetings on a town email address, then his personal email remains private.

On minutes: The only requirement in the law for minutes of public meetings is who voted for what, Hennick said. Minutes “do not have to be ‘War and Peace.’ You want them complete and with enough information so someone can tell what the meeting was about.” Meetings, whether in draft or final form, must be posted within seven business days.

Asked if there is a law against inconvenient meeting times, Hennick said there is no prohibition in the law. Asked if public comments must be permitted, Hennick said that is up to the particular board.

And are public meetings open to anybody — even people who do not live in the town?

“Anybody at all,” said Hennick.

Asked again about emailing between board members, Hennick described the practice as “a slippery slope.

“If it looks like a conversation, it’s best avoided.”

What happens if someone receives an email that has been circulating? The questioner said he was told not to respond, to avoid legal difficulties.

Hennick said, “The key is not to have the conversation that should be held in public.”