There are times where a public agency may get so caught up with solving an existing problem that it will lose sight of the need to comply fully with the Freedom of Information Act [“FOIA”] and thus create what could potentially be an even bigger problem. In this vein, a recent Freedom of Information Commission [“FOIC”] decision highlights both a) the risk of not “making legal” a de facto subcommittee, and b) the fact that for those who act in a transparent manner, substance may actually rule over form.
In Dacey v. Member, Building Subcommittee, Board of Education, Easton Public School, #FIC 2013-021 (December 18, 2013), a school district was having continuing problems with a newly constructed elementary school’s heating and air conditioning system. The Superintendent of Schools asked the School District’s Director of Finance and Operations to find a prompt solution to these issues. The Director then solicited the advice of several individuals, namely, the Town First Selectman, the Town Engineer, the Board of Education’s Chairman, and another member of the Board, as well as two private citizens. These individuals and the Director referred to themselves as both a “study group” and a “work group,” the purpose of which was to assess, analyze and find a solution for the elementary school’s problems, and to report their progress to the Board of Education. The work group convened five times. The work group ultimately recommended that a private company be hired to address the elementary school problem. The company was hired, the building problem was addressed and resolved, and the work group disbanded.
The complainant alleged that the Board and the individuals involved [collectively, “the respondents”] violated the FOIA by forming a subcommittee of the Board of Education, and holding meetings without following the FOIA’s requirements for posting agendas and preparing minutes. The complainant requested the imposition of fines against all of the individually named respondents. The FOIC found that the work group was essentially a subcommittee and thus a public agency that was covered by the FOIA during its existence. The respondents conceded that they should have considered the work group a subcommittee of the Board of Education, subject to the provisions of the FOIA. The respondents explained that in their haste to resolve the elementary school’s problem, they did not realize that they had in fact created a subcommittee. Nevertheless, the respondents contended that any violations of the FOIA that the work group may have committed with regard to their meetings were time-barred, since a FOIC complaint has to be filed within 30 days of the violation, or in the case of an unnoticed or “secret” meeting, within 30 days after the complainant receives notice that such a meeting was held.
The FOIC noted that despite the complainant’s contention that the meetings of the work group were conducted in secret and with the intention of violating of the FOIA, members of the work group referred to both the group’s meetings and the progress that the group was making several times during the public meetings of the full Board of Education. In fact, at a Board of Education meeting attended by the complainant, a private engineer addressed the Board with regard to the scope of the work necessary to address the building problem. In addition, as noted in the Board’s minutes, the composition, progress and work of the study group was discussed at this same meeting. The FOIC found that the work group would not have intentionally violated the requirements of the FOIA only thereafter to discuss its illegal meetings in public. The FOIC found that the work group was formed under urgent circumstances, and began to address its objective, without realizing that it was, in fact, a subcommittee of the Board of Education subject to the provisions of the FOIA. In addition, in light of the attendance of the complainant at this Board meeting, the FOIC found that the complainant had notice that some sort of a work or study group had formed and was meeting to address the building problem, and therefore that any issue that the complainant had with regard to the work group’s meetings prior to the Board meeting should have been brought to the FOIC’s attention within 30 days of that Board meeting. As a result, the claims regarding all but two of the meetings of the work groups were time-barred.
The complainant’s claims for two unnoticed work group meeting taking place after the Board of Education meeting were not time-barred. As to these two work group meetings, the FOIC found that the work group violated the FOIA by holding unnoticed meetings and by not preparing minutes for said meetings. Nonetheless, the FOIC declined to consider the imposition of any fines, and based on the facts and circumstances of this case, the FOIC did not make any orders or take any action.
Lessons learned for Board of Education members and employees: Often times, public agencies will form a committee or subcommittee without realizing they have done so. The open meeting requirements of the FOIA apply not only to a public agency, such as a school board or town council, but also to an agency’s subcommittees. In addition, the term “created by” was added to the FOIA to cover committees that may include or consist of non-agency members. Unfortunately, there are numerous examples of subcommittees simply neglecting to comply with the FOIA, particularly the requirement to create minutes. The author would, of course, urge all to be aware of and to comply with the law. In any event, transparency about non-confidential public business, and immediately curing and expressing contrition for any unintentional FOIA violations will help inoculate an agency from the more severe penalties that could be imposed by the FOIC.