ETHICS COMMISSION, TOWN OF GLASTONBURY v.

FREEDOM OF INFORMATION COMMISSION et al., SC 18601

Judicial District of New Britain

 

     Freedom of Information Act; Whether the Freedom of Information Commission is Statutorily Prohibited From Imposing a Penalty that Requires an Agency to Record its Future Executive Sessions.  The freedom of information commission (FOIC) found that the plaintiff, the Glastonbury ethics commission, violated the Freedom of Information Act (act) by improperly convening an executive session to discuss a complaint alleging unethical conduct by certain town officials.  The FOIC ordered the plaintiff to "cause minutes to be filed of the . . . executive session to the same degree as would have been revealed by conducting the session in public."  Subsequently, the plaintiff amended its minutes of the executive session.  Defendant Karen Emerick appealed to the FOIC, claiming that the plaintiff failed to comply fully with the FOIC's order in that the information disclosed was not sufficient to reveal what transpired in the executive session.  The FOIC agreed with Emerick and, as a penalty, ordered the plaintiff to make and maintain, for a period of three years, an electronic audio recording of each of its executive sessions or any other meeting that was closed to the public.  The plaintiff appealed that decision to the Superior Court.  Noting that General Statutes § 1-226 expressly authorizes the tape recording of public sessions of public agencies, but is silent on the issue of the tape recording of executive sessions, the plaintiff invoked the doctrine of expressio unius est exclusio alterius  ("the expression of one thing is the exclusion of the other") in claiming that § 1-226 must be interpreted as prohibiting the tape recording of executive sessions.  The trial court rejected this interpretation.  It explained that the fact that § 1-226 does not specifically authorize the recording of executive sessions could not be taken to mean that the legislature intended to bar their recording absolutely.  The plaintiff next argued that the FOIC did not have authority to issue the challenged sanctions order under General Statutes § 1-206 (b) (2), which provides that "the [FOIC] may . . . order the agency to provide relief that the [FOIC], in its discretion, believes appropriate to rectify the denial of any right conferred by the [act]."  (Emphasis added.)  Specifically, the plaintiff argued that, because a finding of a violation of the act is a prerequisite to the issuance of a penalty under § 1-206 (b) (2), the FOIC does not have authority under that statute to impose a prospective mandatory injunction against an agency in matters factually and legally unrelated to the complaint before it.  The court, however, concluded that § 1-206 (b) (2) provides the FOIC with broad authority to craft individualized remedies, as long as the remedy is specifically tailored "to rectify the denial of any right conferred by the [act]."  The court  ruled that the penalty imposed by the FOIC did not constitute an abuse of discretion because the penalty was intended to cure the plaintiff's violation of the act and make the FOIC whole.  In this appeal, the Supreme Court will review the trial court's decision.