On Tuesday, January 6, Russell Blair from the Connecticut Freedom of Information (FOI) Commission gave a presentation on and answered questions relating to the FOI Act for local board and commission members.

Blair, as the Connecticut FOI Commission’s director of Education & Communications, travels across the state to hold informational sessions relating to the FOI Act.

All board and commission members were encouraged to attend the Tuesday night training, especially those newly appointed.

The FOI Act passed in 1975 and grants public access to meetings and records of public agencies. Blair called the act a reform that came after the Watergate scandal.

“There was a lot of concerns about government secrecy, lack of transparency, references being destroyed ... and so on,” Blair explained.

When Connecticut House of Representatives member Ella Grasso ran for governor in 1974, she made the FOI Act as part of her platform.

She got elected and the act successfully passed the following year, with it passing unanimously in both chambers. This fact, Blair said, is one of the reasons the law is so complicated.

“Quite frankly, they had to make a lot of compromises to get a law that everybody [could] get on board with,” Blair added.

Blair, throughout his years in the commission, has found most people understand the basics of the act: to provide government transparency, give the public access to information, and let the public come to meetings.

Where it gets difficult, he said, is the nuance. Blair told audience members they would not leave as experts in FOI, but he hoped they would be able to conduct the business of their boards and commissions without having to worry about breaking regulations.

“This way, you’re not worried about FOI ... and have it be an overarching concern that’s part of the job,” Blair said. “You know what you need to do, and doing it becomes second nature.”

Blair said it is important to follow FOI because it is the law, and if somebody finds an issue in following regulation, they can file a complaint.

This is more common than people might think; Blair said the Connecticut FOI Commission received 1,251 complaints across cities, towns, and the State government last year.

Blair said they will not throw people in jail for failing to follow FOI, but they can issue fines, order the production of records, order mandatory training, or even nullify votes taken at a public meeting.

“If there was a situation where a meeting wasn’t properly noticed and some action was taken, the commission could come in, and because of how our process works it could be months down the line, and the commissioner might say, ‘Well, that vote you took in May is now voided,’” Blair explained.

If an incident happens and it is the first time the Connecticut FOI Commission is called, Blair said they are not going to issue a $5,000 fine or something along those lines. However, if the commission sees repeat violations by the same board, Blair said fines like that “can be considered.”

Complaints, Public Agency

Blair noted that a complaint has to be filed within 30 days of a FOI violation. An incident which happened a year ago, he said, would be too late for somebody to file a complaint.

“We don’t want to repeat the mistakes of the past, but also, we’re not here to re-litigate past issues so much as current issues or ongoing practices,” Blair said.

He also noted that every time a complaint gets filed there is an ombudsman who is assigned from their office. Sometimes these complaints do not have a hearing because they figure out a way to resolve the issue. Training sessions can be one way to resolve a complaint.

From there, Blair outlined basic definitions that pertained to meetings. Blair wanted to do this because he feels it is important everyone have the same level of understanding of these key terms and words.

A public agency, or agency, is anybody that is covered under FOI. For Newtown, this includes boards, departments, and commissions, whether figures for said groups are elected or appointed.

Blair also said there are cases where an individual is considered to be a public agency themselves, such as a school superintendent, first selectman, or mayor.

He added that FOI covers board subcommittees, so subcommittees are expected to notice their meetings, taking minutes; following the same rules as the board they are part of.

Meetings Overview

The definition of what a meeting is under FOI is “very expansive,” according to Blair.

He said there are three key traits that make a meeting. The first is a quorum of board members, which is a voting majority of a board, or enough people who could make a decision or carry a motion. This only includes people who are actually serving; vacancies are not counted.

The second is any gathering, convening, assembly, or communication via electronic equipment such as email or text messages.

The third and final element is to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction, or advisory power. In shorthand, Blair calls this trait “business.”

“So if we have a quorum of our board, they are gathered [or communicating] in-person or electronically, and there’s some discussion or action that pertains to business. That is what makes a meeting,” Blair explained.

A classic “what not to do,” he said, is when board members start replying and discussing agenda items over email. Doing so means board members have essentially started the meeting in their email thread, which goes against meeting provisions.

“The worst thing you want to have happen is you come to a meeting ... and somebody says, ‘Yeah, we were emailing about this earlier,’ or,’ We were texting about this topic,’ because somebody in the audience could hear that and file a complaint,” Blair said.

Blair said if board members receive an email and do not respond or discuss it amongst themselves offline, then that is okay.

Other meeting basics include: anyone can attend a public meeting; meetings can be photographed, recorded, or broadcast; and public comment is up to the board (there is no law that guarantees public comment in Connecticut, making it a local decision).

The law says that anybody has the right to attend a public meeting, according to Blair. If a board has a topic they are expecting a lot of people to come out for, they cannot deny people access to the meeting.

“If the room is at capacity and there’s people who want to come to the meeting, you can’t just tell them to go home. You’ve got to try and find a way to accommodate that,” Blair said.

This can be done through hybrid Zoom meetings or scheduling the meeting in a larger room that can accommodate a larger crowd.

Meeting Types

Blair said there are two main kinds of meetings allowed under the law: regular meetings and special meetings.

A regular meeting is a meeting that is on a board or commission’s regular meeting schedule as filed with their municipality or state.

A notice/agenda must be filed at least 24 hours in advance. While there is no legal requirement for municipalities to publish minutes on their website, and they only need to be filed at the Town Clerk’s office, Blair said most people now look to websites for this information.

“So if you don’t have these things posted on the website, it might not be an FOI violation, but it might cause issues, questions, and general complaints,” Blair explained.

An item can be added to the agenda of a regular meeting with a two-thirds vote.

The only thing that makes a special meeting “special” is that they are scheduled outside of a board or commission’s regular schedule, according to Blair. He said people can do all the same business at a special meeting that they would do at a regular meeting.

A notice/agenda for special meetings must be filed at least 24 hours in advance and be posted on the relevant website. Additional items cannot be added to the agenda during the meeting, and minutes must be filed within seven business days.

There is also a third type of meeting: emergency meetings. These must only be called if there is a bona fide emergency that cannot wait the 24 hours needed to call a special meeting.

No notice or agenda is required for emergency meetings, and only emergency matters may be discussed. Minutes must be filed within 72 hours of the meeting, and posted online with the reason for the emergency.

Blair said he strongly discourages boards and commissions from using this unless there is a true emergency.

Other Info

As for minutes, Blair said the most important thing is to get them in on time. They are required to have a record of who was in attendance, as well as who voted for what or for whom.

Minutes must also be available within seven days of the meeting; draft minutes are allowed for this purpose. They are also required even if a recording of a virtual meeting is available.

There are also certain rules for electronic/remote meetings. Regular virtual meetings require 48-hour notice with instructions to attend, and the agenda can be posted 24 hours in advance. Special meetings require 24-hour notice with an agenda.

Online-only regular meetings must be recorded and posted on the agency’s website within seven days, and must be available for at least 45 days. Online participants can be kicked out if they are being disruptive, as is the case for in-person meetings.

A board or commission can also meet in private, which is called Executive Session. They can do so for five reasons: discussion of records exempt from the FOI Act, pending claims, security, sale or lease of property, and personnel matters (the individual must be notified and can demand open session).

Executive Session, Blair said, is probably the hardest thing when it comes to meetings because there is the most room for interpretation.

“People are naturally going to be a little curious or suspicious because ... you’re deciding this is something where we’re not going to do [it] in public,” Blair explained. “There’s a heightened level of scrutiny, so it’s extra important you make sure you do these things right.”

An agency must have a two-third vote to go into Executive Session. Meetings still require an agenda and are encouraged to be specific on topic. Board or commission members cannot vote during Executive Session, and while staff can be invited to assist, they cannot create a second audience.

If multiple people need to be talked to during an Executive Session, they can be brought in individually, leave after they are done, and the next person can come in.

Public Records

Public records or files means any recorded data or information related to the conduct of the public’s business. The key thing people should understand, Blair said, is how broad the law is when it comes to public records.

Blair stressed that public records include emails or receipts retained for business and text messages received for business. Regardless of whether a board or commission member has a Town device or not, those are still public records. The content, he said, is what determines if something is public record.

“From time to time, board members will get asked for copies of correspondence where, if they think something was happening behind the scenes, they might ask a board member for emails between them or the board chair,” Blair said. “And even if you use a personal email account, those records are still public records.”

This does not mean the public gets access to other emails that have nothing to do with Town business or that they get to look through a board or commission member’s phone. However, it means a person could make a discreet request, according to Blair.

There are also retention requirements for items like emails and text correspondence, depending on what they entail. Board or commission members do not have to keep transitory things, but if there is back and forth discussion about a proposal, Blair said the retention period is generally two years.

If they are not going to give somebody what is public record, Blair said there needs to be a legal, statutory basis for that.

“There needs to be a federal or state law that says it’s confidential, it can’t be disclosed, and gives you permission to withhold it,” Blair said.

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Reporter Jenna Visca can be reached at jenna@thebee.com.