Few public bodies comply with open info laws

More than 40 public bodies help govern Darien, but only five of them have been consistently compliant with the Freedom of Information Act over the past three years, according to a Darien Times investigation.

While this information isn’t exactly cut and dry — some boards only meet as needed, and at least one hasn’t met a single time since 2010 — it does provide a glimpse into the need for better awareness among those who make decisions that affect residents and surrounding communities.

Some apparent violations to the Freedom of Information Act, or FOIA, are minor. The Planning & Zoning Commission, for example, over the course of dozens of annual meetings, has kept agendas and minutes posted on the town website with the exception of a single public hearing in 2010.

Some appear more egregious, such as the EMS Advisory Committee’s failure to post a single notice of a meeting or an agenda since it came into existence in 2009. By law, notice of a meeting is supposed to be made public 24 hours in advance of the meeting, and minutes are supposed to be public within seven days.

The Five Mile River Commission could be another major offender, depending on how it submits minutes, which isn’t clear. This group is an agency of the state, with members appointed by the governor for four-year terms. Members also include Norwalk residents. However, no minutes or agendas have been filed with the town since 2010. Attempts to reach the commission’s chairman, Matthew Marion, for clarification, were unsuccessful.

Common FOIA mishaps typically include not posting minutes within seven days. Currently, there are six town boards with minutes yet to be posted from a 2013 meeting: the Darien Housing Authority; the Transfer Station Advisory Committee; the Police Commission; the Monuments & Ceremonies Commission; the Advisory Board of Health; and the Zoning Board of Appeals.

Some have minutes outstanding from January this year, some from early March.

The Aquifer Protection Agency, which is the Planning & Zoning Commission, had a meeting scheduled for March 5, but it’s unclear if that meeting was cancelled. This group appears to have not met once in the past three years. The Flood Mitigation Strategy Committee hasn’t met since 2010, when it only met twice, and there are no minutes from either meeting.

A few boards have improved their FOI compliance over the years, notably the Commission on Aging, which had been posting unapproved draft minutes on its website from several 2011 meetings, but they appear to now be posting final draft minutes, in accordance with the FOIA.

The Beautification Commission has also improved its level of transparency since 2010, according to town records. They originally were failing to post minutes from majority of their meetings, but last year every meeting was noticed and minutes posted.

The town bodies that seem to be functioning in full compliance with the FOIA are the Board of Selectmen; the Operations Planning Committee; the Architectural Review Board; the Social Services Commission; and the Parks & Recreation Commission. These groups appear to have filed agendas and minutes for all meetings over the past three years, according to town records.

The Town Clerk’s office keeps track of physical copies of agendas and minutes, and according to those documents, many minutes that are now online were filed after the seven-day deadline mandated by state law.

Executive sessions

Oftentimes boards meet for an executive session, which is held outside the public eye. These are held for personnel discussions such as hiring and firing, pending litigation, security concerns, certain real estate issues, medical information and other confidential matters.

Darien is unlike many Connecticut towns in how it holds its executive session meetings. Many town boards hold the session before the public meeting, whereas in other towns, it’s held at the end. Wayne Fox, town attorney, said it has been done like this for some time, and it’s done as a “courtesy” to people so they don’t have to wait around while the executive session happens.

However, the Darien Times learned that in some cases, particularly with the Board of Selectmen, the advertised start time for a meeting is after the start time of the executive session. Thomas Hennick, a spokesman for the state’s Freedom of Information Commission, said this should not be the case.

“The meeting is called for 7:45 and that’s technically when it starts,” Hennick stated in an email. “That means that the executive session is not part of a full meeting. They should either move the start time to 7:15, notice the executive session as a separate, special meeting or start the executive session after 7:45.”

The town does, however, notice the meeting as a separate special meeting, but the website’s homepage advertises the public meeting and not the executive session. Town attorney Fox said he doesn’t think the current practice violates the FOIA.

“While I do not feel there was or is any violation, the boards, because of their wish to be transparent, are always open to suggestions for change or suggestions for improvement,” Fox stated in an email.

However, selectmen and the Board of Ed, and perhaps others, begin their executive session in a room that is not the public meeting room, which Hennick said could also be a problem.

The town and schools both advertise their private meetings will be held in a different room. Selectmen, however, do not include this information on their agenda. The “call to order”, which is the official start of the meeting, is noted after the executive session is held, in the order on the agenda. Hennick said this is also not supposed to happen.

“The good news, in my mind, is that there is no attempt to deceive or obfuscate here,” Hennick said. “The issues are more technical in nature.”

The reason for an executive session is supposed to be stated after the call to order, and it’s supposed to be made in public, according to statute. By holding the executive session before the meeting, it does not give the public a chance to hear what the officials were going to talk about.

In some cases, agendas aren’t specific enough as to what the executive session will cover. A recent Housing Authority meeting noted “Executive Session” with no further explanation, which, according to statute, is insufficient. That meeting, which was in February, also has no minutes filed. Jan Raymond, the authority’s chairman, said there’s been some “shuffling around of people” at her office recently, and the missing minutes are likely an oversight.

“It’s a rarity for us,” Raymond said of not filing minutes. “We’ve been extremely complaint. This is an oversight. We’ve had a change of personnel and I think that explains the oversight.”

Outstanding violations

While there is a 30-day statute of limitations on filing an FOIA complaint after an alleged violation, that statute is waived if meeting minutes have never been filed.

The Board of Ed, for example, has six instances since 2010 where it has yet to file minutes for a meeting. Most recent meetings also have video, but older ones do not.

The Zoning Board of Appeals has no minutes from 10 meetings in 2010, but the group has improved since, although several meetings appear to still have draft minutes and not the final approved versions.

In addition to the above boards, the following town bodies each include a number in parentheses indicating how many potential FOIA violations are outstanding since 2010: TV79 Advisory Board (4); Town Pension Board (8); Advisory Board of Health (5); Monuments & Ceremonies Commission (17); Youth Commission (2); Planning & Zoning Commission (1); Environmental Protection Commission (3); Commission on Aging (1); Beautification Commission (5); Police Commission (1); Transfer Station Advisory Committee (6), although this committee has only been in existence for roughly four months.

Most town board members are volunteers, which can make full compliance somewhat difficult, town officials have said. However, as noted in the Darien Times editorial last week: If “you’re going to volunteer, you need to make sure to do it right.”

CORRECTION: The Planning & Zoning Commission’s 2010 meeting did not include minutes because there was no quorum, and a meeting was not held that night, according to Jeremy Ginsberg, planning and zoning director. Many town bodies draft minutes noting there was no quorum and therefore no meeting was held, although it’s unclear if that is an FOI requirement.

Originally published in The Darien Times.

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