Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission

Peters, C. J.,

dissenting. I disagree that the elections review committee of the eighth utilities district is not a “committee” and thus is not a public agency subject to the Freedom of Information Act. General Statutes §§ l-18a through l-21k. As I read General Statutes § l-18a (a), it plainly includes a committee *699whose membership overlaps that of the public agency that is its creator. Even if I were persuaded, however, that the statute has some latent ambiguity, I would conclude that, in order to effectuate the regulatory purposes of the Freedom of Information Act, such a committee must conduct its business in accordance with the act’s mandate for public access to deliberations about public policy. Accordingly, I respectfully dissent.

The record establishes that the elections review committee (committee) was appointed by the eighth utilities district, a public agency, to formulate recommendations for changes in the district’s annual meeting procedures. The committee included one district director and three district electors. In the process of formulating its recommendations, the committee held a public hearing, but it did not otherwise comply with the requirements of the Freedom of Information Act. The gravamen of the complaint that brought this matter to the attention of the Freedom of Information Commission was the committee’s failure to keep minutes of its meetings as required by §§ 1-19 (a) and 1-21 (a) of the Freedom of Information Act.

The only issue before the trial court, and before this court, is whether the requirements of the Freedom of Information Act govern the activities of the elections review committee. The majority now concurs in the trial court’s holding that the applicable statutory provision, § l-18a (a), is ambiguous and that its legislative history counsels against inclusion of the elections review committee within the ambit of the statute. I disagree.

The text of § l-18a (a) includes, as a public agency, “any committee of any such [public] agency . . . .” (Emphasis added.) It is hard for me to find any ambiguity in that all-encompassing description. As the *700majority opinion notes, the elections review committee falls cleanly within the definition of “committee” contained in Webster’s Third New International Dictionary: “a body of persons delegated to consider, investigate, or take action upon and [usually] to report concerning some matter or business . . . .”

Two possible sources of latent ambiguity may be conjured up in support of the contrary conclusion. On the present record, the facts show that the authority of the elections review committee did not encompass the enactment of bylaw changes for the eighth utilities district but was limited to making recommendations about such changes. That limitation on the scope of the committee’s authority is a commonplace in committee functioning, which, as Webster’s notes, typically focuses on preparation of a report to the appointing authority. Alternatively, on facts other than those presented by this record, a public agency might appoint a “committee” composed entirely of public-spirited citizens, who had offered to contribute their services pro bono to promote good government. Arguably, such a committee might fall outside of the scope of § l-18a (a), because it might not be a “committee of” the public agency. The possibility that a statute might manifest some latent ambiguity in other circumstances does not, however, make it ambiguous as applied to the elections review committee. See, by way of analogy, State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); Weil v. Miller, 185 Conn. 495, 500, 441 A.2d 142 (1981). I am unable to discern any other putative sources of latent ambiguity in § l-18a (a), and the majority opinion identifies none.

Conceding ambiguity, arguendo, I am equally unpersuaded that a functional analysis of § l-18a (a) supports excluding the elections review committee from the reach of the Freedom of Information Act. When we *701are confronted with ambiguity in a statute, the canons of statutory construction require us to ascertain the apparent intent of the legislature by examining the legislative history of the statute and the circumstances surrounding its enactment, in light of the purpose it was intended to serve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

In appraising the relevant legislative history, we must keep in mind what is at stake. If the elections review committee is entirely outside of the regulatory purview of the Freedom of Information Act, it is not only the preparation of proper minutes that will be excused. The committee, or its successor, will be free to conduct its deliberations entirely in private, having no legal obligation to conduct any public meeting whatsoever, whether its agenda be procedural reform or substantive amendment of the rules governing the authority vested in the utilities district. The eighth utilities district, in turn, upon receiving the report of the elections review committee or its successor, may vote to accept or reject the report without any public deliberations about the merits of its recommendations. For the process of getting business done, shaping the agenda is at least half the battle. No matter how well-meaning may be the intentions of the group to which that responsibility is delegated, to allow this crucial function to be conducted in deliberative proceedings from which the public may be entirely excluded is to validate a scenario that is inconsistent with the Freedom of Information Act’s strong legislative policy in favor of the open conduct of government and free public access to its records. Lieberman v. Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990); Board of Trustees v. *702Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980).

The legislative history on which the majority relies to counter this purposive construction of the 1983 amendment that added committees to the ambit of the Freedom of Information Act is the testimony of Mitchell Pearlman, the executive director and general counsel of the Freedom of Information Commission. Undeniably, Pearlman’s testimony focused on committees composed of subunits of public agencies. A ready explanation for that focus is that the then litigated cases arose in that context. That the legislature shared Pearlman’s concern about potential abuses arising out of committees composed entirely of public agency members does not demonstrate, to my mind, that it did not recognize the risk of a similar abuse for committees whose membership overlapped only partially with that of a public agency. Indeed, in enacting the amended § l-18a (a), the legislature, emphasizing the importance of public access to deliberations about public policy, specifically rejected a proposal to include within the coverage of the Freedom of Information Act only those committees that are empowered to make legally binding decisions. 26 H.R. Proc., Pt. 13,1983 Sess., pp. 4578-4628.

The Freedom of Information Act was intended to assure that public agencies in Connecticut conduct their affairs in accordance with the principles of open government. In extending that salutary principle to include committees appointed by public agencies to pursue a public agenda, the legislature intended, I believe, to include public access to the deliberations of any public committee on which any member of a public agency serves.

I respectfully dissent.