Education Law Notes  

While there are more urgent public health issues to consider, the outbreak of the Coronavirus (COVID-19) has caused practical concerns regarding how public agencies can comply with Connecticut’s Freedom of Information Act (“FOIA”) and its posting and open meeting requirements, especially when 1) Governor Lamont has already prohibited gatherings of 250 or more persons, and 2) scores of persons may be self-quarantining for obvious reasons. 

Some of these concerns were addressed when the Governor issued Executive Order 7B, which provides in pertinent part that the in-person open meeting requirements of the FOIA (and any municipal charter, ordinance or regulation) are suspended to the extent necessary to permit a public agency to meet and take action without permitting or requiring in-person, public access to such meetings, and to hold such meetings or proceedings remotely by conference call, videoconference or “other technology”, provided that the following conditions are met :

1) the public has the ability to view or listen to each meeting or proceeding “in real time, by telephone, video, or other technology”;

2) such meetings or proceedings are recorded or transcribed, and such recordings or transcripts are posted on the agency's website within seven days of the meeting or proceeding, and made available within a reasonable time in the agency's office;

3) the required notice and agenda for a meeting or proceeding is posted on the agency's website and must include information about how the meeting will be conducted and how the public can access it;

4) any materials relevant to matters on the agenda (including but not limited to materials “related to specific applications”) must be submitted to the agency at least twenty four hours prior and posted on the agency's website for public inspection prior to, during, and after the meeting; in addition, any exhibits to be submitted by members of the public must “to the extent feasible” also be submitted to the agency at least twenty-four hours prior to the meeting and similarly posted on the agency's website for public inspection; and

5) all speakers taking part in any such meeting or proceeding must clearly state their name and title, if applicable, before speaking on each occasion that they speak.

While Connecticut’s Freedom of Information Commission (“FOIC”) has accepted the idea of remote participation in meetings (provided that the members of the public could hear and identify all participants to a meeting); Understanding Connecticut’s Freedom of Information Act, By Mark J. Sommaruga (5^th Edition), pp. 6-7; this Executive Order provides greater flexibility by 1) superseding any contrary requirements in agency bylaws, town charters and ordinances that may have limited or prevented such remote participation, 2) permitting certain written materials to be available by electronic means (via the agency website), as opposed to having to be available at the public meeting location, and 3) expressly envisioning that meetings may be conducted entirely via remote locations and electronic means (without even having a place for the public to attend).  Agencies will still have to ensure that the public can have access “in real time”, whether via being able to dial in via a conference call or “go to meeting”, or via internet streaming coverage or use of social media.  Public agencies will not be able to charge for such access (but also will not be required to purchase electronic equipment for the public to use to obtain such access). For any public comments portion of a meeting, perhaps an agency may wish to consider allowing for members of the public to dial in, e-mail, text, or even “tweet” questions or comments.  Many thanks should be given to the Connecticut Conference of Municipalities and the Connecticut Council of Small Towns for their apparent sway with obtaining this Executive Order.

These Executive Order provisions are obviously in place just during the current pandemic.  However, the experiences during this period may inform how the FOIC construes the FOIA and the ability to rely upon “remote” or electronic meetings.   If there are not many glitches, perhaps the FOIC will issue a new advisory opinion or decision endorsing or adopting some of these Executive Order provisions for “normal” times.  Stay tuned.