The Freedom of Information Act (FOIA) guarantees public access to public records, or at least attempts to. It is this side of the law that receives the most attention, particularly when vagaries in the statute or failure of public officials to comply ends in records being produced after splashy, multi-year court battles.

But there’s also a less glamorous side to FOIA: open meetings requirements.

In addition to dictating how public agencies must provide access to public records upon request, FOIA also stipulates how public agencies must make meetings publicly accessible. In recent years, this portion of the law has undergone significant changes, with the COVID-19 pandemic leading to the rise of remote meetings.

Though COVID-19 has faded from the headlines, hybrid meetings, which offer greater flexibility, seem largely here to stay.

But with them comes new challenges. Though offering a hybrid option makes participation easier for public officials, that doesn’t always translate to easier participation for members of the public. With new meeting formats have come new FOIA requirements for accessing hybrid meetings—and public agencies don’t always get them right.

According to Simsbury resident Lori Boyko, those access requirements have been a problem plaguing the Simsbury Library Board of Trustees. Boyko has been documenting alleged open meeting violations, including failing to publicly post agendas in accordance with FOIA, improperly entering executive sessions in the midst of local controversy, and perhaps most significantly, not giving residents the same opportunities as board members to access meetings remotely.

Boyko knew little about FOIA prior to spring 2024, when she first began attending library board of trustee meetings, but after witnessing multiple alleged violations she has taken the library all the way to the Freedom of Information Commission (FOIC). She believes that her cases and her reading of FOIA’s language on remote participation are giving the commission an opportunity to revisit the legislature’s intent and potentially clarify the law.

Boyko says the library board of trustees is one of roughly twenty boards or commissions in Simsbury whose members are breaking FOIA’s open meeting requirements. And she hopes that if the commission rules in her favor, it will telegraph to other agencies in the town that they need to do better following FOIA.

Boyko first began paying attention to library operations in the spring of 2024 after reading an op-ed about book content. She told Inside Investigator that she decided to attend the June 17 library meeting to see if it would be discussed. However, when she went to the library website to learn more about the meeting details, she found no agenda had been posted.

Boyko then emailed the town clerk on the day of the meeting to see if it had been posted in person, who replied that it hadn’t been. She also emailed Holly McGrath, the library board of trustees chair, asking for a copy of the agenda and questioning why it hadn’t been posted.

McGrath replied shortly with a copy of the agenda, stating she wasn’t sure why it hadn’t been posted on the town website.

“Then I went to go to the meeting that night, and there was a sign on the door that said the meeting had been cancelled. And I presumed it was cancelled because they had not properly noticed the meeting. But Lisa Miceli, the library director, came downstairs where the meeting was supposed to be held, and I’ve not interacted with her previously, and she said ‘I thought I’d find you here.’”

Boyko, who’d never attended a library board of trustee meeting before, asked why that would be the case. AMiceli, reportedly told Boyko it was because she had asked about the agenda. Miceli also reportedly told Boyko they’d had to cancel the meeting because of her.

“No, you had to cancel it because you didn’t post the agenda.” Boyko recounted.

Under FOIA, public agencies are required to post the agenda of regular meetings at least twenty-four hours prior to the meeting start time. State agencies are required to post agendas in their regular office or place of business and with the Secretary of State’s office. Municipal agencies are required to post agendas in their regular office or place of business or with a town clerk. State agencies are also required to post agendas online.

After that exchange, Boyko went home and again emailed McGrath. “I really wish you had followed up on your earlier email to let me know you had cancelled the meeting. It would have saved me the trip.” Boyko wrote.

McGrath’s response was that she had been in another meeting when it was cancelled.

Boyko told Inside Investigator that response put a “burr under her saddle.”

That wouldn’t be the only time Boyko discovered the library board of trustees had not posted its agenda prior to a regular meeting.

On July 17, 2024, Boyko again contacted the town clerk asking for a copy of the agenda from the board’s May meeting. The clerk replied that Miceli was aware the May meeting hadn’t been properly noticed. She also wrote that Miceli had agreed in June that the board would take action on May agenda items at the next regularly scheduled meeting as a result.

Miceli also responded to Boyko’s email, writing that the board voted on motions from the May agenda during their July meeting and would post them shortly.

As of the publication date, the meeting agenda from the May 20 meeting is not on the library’s website. However, minutes from the May meeting are.

The only reference in the July meeting minutes to the May meeting is an agenda item noting the board voted to approve the May meeting items. According to the May meeting minutes, the board made two motions: one to fund $100 for gift cards for the library’s Coffee Buddies program, which partnered library staff with people from different departments to “gain support and understanding from one another,” and a second to approve a policy for material display.

The July meeting minutes note the board voted to approve $125 from the Library Board of Trustees’ Discretionary Fund for the Coffee Buddies program. They also note the board again voted to approve the materials display policy.

But here, Boyko—and others who attended the July meeting—saw an issue.

According to the May meeting minutes, the board discussed “how thorough” Miceli’s description of the process for the material display policy was written prior to voting unanimously to approve.

According to the July meeting minutes, when the board again took up the policy because the May meeting hadn’t been properly noticed and its actions were invalid, Miceli “stated that the policy explains how materials are selected, the criterion for choosing displays, and the procedure and process visitors can go through when they do not agree with a display.”

But, according to Boyko, the board didn’t provide details of the policy they were voting on. They referenced a previous discussion where the policy had been discussed. The policy also wasn’t available online or handed out during the meeting.

“Those of us in the room kind of looked at each other, like what are they talking about? We talked later and were a little baffled. Maybe they had a meeting outside the meeting.” Boyko said. She added the tone of the conversation felt inappropriate, like a conversation was going on and the public observing the meeting were on the outside of it.

“It felt familiar from other boards and commissions.” Boyko added.

The policy currently posted on the library’s website says it was approved by the committee on May 20.

The board’s vote on the material display policy would become immediately significant in the following months as an art installation at the library, which was critical of then-candidate Donald Trump, became the center of a local controversy in August 2024.

Titled “You’re Fired! I Quit!”, the installation contained portraits, made of non-recyclable trash, of Trump and members of his first-term cabinet. The portraits were initially accompanied by descriptive text that, in an interview with CT Insider, Simsbury First Selectwoman Wendy Mackstutis described as mostly “derogatory and the artist’s view of each member of that administration.”

Mackstutis told CT Insider she felt the political nature of the installation was inappropriate because it was displayed during a presidential election year and that she didn’t believe a public library should host political art.

Miceli and McGrath allegedly became aware of the text accompanying the portraits at the same time Mackstusis did. Miceli told CT Insider she brought concerns to McGrath’s attention. After a special meeting of the board of trustees, the library allowed the installation to go ahead—with the descriptions removed.

The special meeting was held at 8:30 AM (the library’s regular meetings are held in the evening) and the agenda simply said one of the items of business was “art exhibit.”

During the meeting, according to the minutes, McGrath stated that the “You’re Fired! I Quit!” exhibit “viewed in its entirety does not meet the Library’s Art Exhibits and Displays Policy which requires exhibits to be ‘safe for family viewing’ and that they ‘not create a hostile work environment.’”

Board members unanimously voted to affirm the library’s decision not to allow the display to be viewed and to have the artist remove the text. The meeting was approximately fifteen minutes long.

According to Boyko, a lot of board members attended the meeting on Zoom. But the agenda did not note it would be a hybrid meeting or offer members of the public any way to attend remotely.

Boyko said she “consciously looked at the agenda” and decided, based on the agenda’s “art exhibit” description, that she didn’t care enough about what art the library was going to display to attend. She added that, had the agenda noted there was a way to attend electronically, she would have attended.

Another issue, according to Boyko, was that the agenda was sufficiently vague and she and potentially others couldn’t “make an informed decision about whether they wanted to attend.”

While the special meeting was held on August 6, media coverage of the stories broke later—with multiple stories running on August 9. As a result, and because of the lack of specificity on the library agenda, Simsbury residents may not have been aware of the controversy or the meeting’s true purpose.

The library’s next regular meeting was held on August 19. Boyko wasn’t able to attend the meeting but asked afterwards for recorded copies of several recent meetings. She was told that meetings aren’t generally recorded (though Boyko does volunteer for Simsbury Community TV, a nonprofit, local public access organization that records many public meetings) but that the August meeting had been recorded because of a presentation on intellectual freedom that had been presented virtually.

The minutes from the meeting also noted that one of the board of trustees members attended virtually. But again, Boyko noted, the public hadn’t been notified they could attend remotely. According to Boyko, one of the board members regularly attends meetings remotely from a vacation property.

“If she can do that, why can’t I?” Boyko asked.

Boyko also noted that the meeting minutes from the board’s regular August meeting made adjustments to executive sessions from past meeting minutes.

Through the end of 2024, the board was including an executive session on each of its agendas. Each agenda had “Executive Session – If necessary” as the final item.

During the board’s regular August meeting, they amended the July regular meeting minutes to note that no executive session had been necessary.

But the board did enter executive session during that meeting. According to Boyko, the board voted unanimously in July to enter the session and everyone besides the library director and board of trustee members left. Afterwards, Boyko realized the reason for the executive session was never announced.

Boyko emailed McGrath to ask for the reason and McGrath responded that she didn’t believe the reason was disclosed.

“Generally, it is to discuss matters that for one reason or another cannot be shared with the public. I can tell you no action was taken during executive session.” McGrath responded.

Boyko responded to McGrath with a statutory reference to FOIA, which requires public agencies to disclose why they are entering executive session.

McGrath said they would amend the minutes to note “the motion to enter executive session was to discuss a personal (sic) matter impacting a trustee.” Boyko emailed again to ask for clarification about the matter and McGrath said they would note the executive session was related to the appointment of a trustee.

Instead, the board voted unanimously during its August meeting to note no executive session was necessary. The meeting minutes from the board’s July meeting that are currently on the library’s website do not reflect that the board entered an executive session and later revised the minutes. They state an executive session was not necessary.

Taken together—the failure to properly notice meetings, the improper use of executive session, and the changing of meeting minutes—the library board’s actions drove Boyko to file multiple complaints with the FOIC.

“I felt like holding the library board accountable because frankly there were so many egregious FOIA violations—repeatedly—and they were reflective of what happens at other boards and commissions [in Simsbury]. I felt like if I filed against the library board, I could hold them accountable and have documentation to show other boards and commissions what’s required and why.” Boyko said.

She has four separate complaints before the FOIC addressing a number of alleged issues that occurred during the June, July, and August regular meetings. Boyko’s complaints challenge vagueness of agenda items, failure to properly notice meetings, failure to instruct the public how to attend electronically, failure to note which library board members attended in-person and remotely, failure to accurately record a roll call vote taken during the hybrid regular meeting in August, and failure to follow FOIA’s requirements on executive session.

Boyko, who spoke to Inside Investigator after hearings in three of her four complaints, said that while she expects the commission to find clear cut FOIA violations in her complaints, she also suspects that “some of the things in the complaints, while accurate representations of what should or should not be done, may not fall under FOIA.”

Chief among those is Boyko’s complaint that the library board of trustees violated FOIA by failing to give the public the opportunity to participate remotely in its meetings.

There are several provisions of FOIA relevant to Boyko’s complaint.

Requirements to properly notice meetings—which requires regular meeting agendas to be publicly posted 24 hours prior to a meeting’s start time—are clear cut. The law also stipulates that public agencies can take up items not publicly posted on an agenda with a two-thirds vote

In 2001, Connecticut’s appeals court overturned a lower court ruling finding that the Plainfield Zoning Board of Appeals did not violate FOIA when it voted on a variance application that was not listed on its meeting agenda. The board also did not hold a separate vote about whether to consider the application prior to voting to approve it. The trial court found, despite the clear requirements in FOIA, that the board did not violate the law. ““Whether an agency must first vote by a two-thirds majority to take up a matter, and then in a second vote to act upon it, or whether it can simply, in one vote, consider and act upon the measure directly by two-thirds vote seems to this court to dignify form over substance.” the lower court found. It also stated that because local boards are frequently made up of “lay people and volunteers,” they “may not always comply with the multitudinous statutory mandates under which they operate.”

The appellate court threw out that finding and looked at the plain meaning of FOIA, finding that the requirement in FOIA that a public agency must first vote by a two-thirds majority to take up business not previously listed on an agenda means exactly that.

FOIA’s requirements for executive sessions are equally well-defined by the law.

Under statute, public agencies can enter executive session for one of the following reasons: to discuss appointments, employment, performance, or other evaluations of a public employee (an employee can request this discussion occur in public); to discuss pending litigation an agency or its employees are involved in; to discuss security; to discuss the lease, seal, or purchase of real estate when discussing the matter publicly would negatively impact the sale; or to discuss a matter that would disclose public records that are exempt from disclosure under FOIA.

To enter executive session, public agencies must state the reason they are doing so. They must also vote by a two-thirds majority to enter executive session.

While the statute on how specific agenda items have to be, both courts and the FOIC have clearly established that vague language that prevents the public from understanding what business will be discussed violates FOIA.

In 2011, the FOIC found that an agenda for a Cromwell Board of Selectmen meeting that listed “personnel” as the reason for entering executive session was insufficient. In 2009, it found a Woodstock Board of Education agenda that read “discussion of attorney/client privilege [sic] documents and pending litigation” was not specific enough. In 2007, it found a Windsor Board of Education agenda item that listed “employee personnel matters” as a reason for entering executive session was too vague. Dating back to the 1980s, it has found similar language broadly giving topics like personnel matters and pending litigation do not give the public enough understanding of what will be discussed.

“This Commission has repeatedly held that in order for the public to be fairly apprised of the reason for an executive session, the public agency must give some indication of the specific topic to be addressed. Descriptions such as “personnel,” “personnel matters,” “legal,” or even “the appointment, employment, performance, evaluation, health, dismissal of a public office or employee” are inadequate.” the FOIC wrote in a 2014 decision finding that an agenda item to enter executive session at a Wilton Board of Education meeting, described as “Discussion of Confidential Attorney-Client memorandum” was too vague.

What FOIA requires of public agencies who host hybrid meetings is less certain.

Electronic meetings are a relatively new part of the law. And, notably, while many public agencies now hold hybrid meetings due to their convenience, the term “hybrid” actually doesn’t appear in FOIA.

Within the last few years, requirements for how remote meetings may be conducted were added to the statute.

During the COVID-19 pandemic, in September 2020, Gov. Ned Lamont issued an executive order allowing remote participation in municipal meetings. The executive order stipulated that, whether meetings were being held electronically or in a hybrid format, remote meetings required the public to have the same ability to comment or otherwise participate that they would in person.

During a January 2021 special session, the legislature passed a law ratifying many of Lamont’s emergency orders, including for remote participation in municipal meetings. The law allowed public agencies to continue to hold hybrid and remote meetings through May 20, 2021, when the public health and civil preparedness emergencies were set to sunset. However, during the 2022 session, the legislature passed another law that removed the sunset date and made remote meetings a permanent part of FOIA.

As currently written, FOIA requires that public agencies holding meetings either electronically or in a hybrid format must provide public notice of their intention to do so at least 48 hours before a meeting’s start time. Special meetings held solely by electronic means require 24 hours’ notice and must notify the public about how to participate.

For regular meetings held solely electronically, public agencies are required to provide a location and equipment for members of the public to participate, providing they inquire at least 24 hours before the meeting starts. Additionally, if meetings are held solely electronically, the public has to be given the same opportunity to comment or otherwise participate in the meeting as they would have at an in-person meeting. Agencies are also required to record and make publicly available copies of electronic meetings. Votes taken during electronic meetings must be taken by roll call, unless they are unanimous, and agency members must identify themselves prior to speaking.

Specifically, the law states that at least 48 hours before a public agency “conducts a regular meeting by means of electronic equipment” they must provide notice of their intent to do so and include a notice and agenda no less than 24 hours prior to the meeting’s start that includes “instructions for the public, to attend and provide comment or otherwise participate in the meeting, by means of electronic equipment or in person, as applicable and permitted by law.”

While it’s clear public agencies have to provide notice of their intent to hold meetings electronically and have to provide instructions for the public to attend either electronically or in person, whether they are required to provide the ability to participate in hybrid meetings both electronically and in person is more ambiguous.

Boyko’s cases could clarify the public participation requirements for hybrid meetings.

She believes—and argued before the FOIC—that so long as public agency members are participating remotely, FOIA does require the public to be able to participate remotely.

“If you’re present in person as a member of the public and public participation is on the agenda, you’re allowed to participate. Those attending electronically also have to be allowed to participate. I think what the statute is saying is that regardless of whether board members are in person or electronic [the public] must be allowed to participate.” Boyko told Inside Investigator. “By definition, if board members are attending electronically, the meeting is being held partially electronically.”

If Boyko’s interpretation of statute is correct, then hybrid meetings would fall under the definition of “electronic meetings” in FOIA and would therefore be subject to the law’s requirement to allow the public to participate remotely.

“My argument is if you’re opening a meeting to member participation that’s electronic, the public needs to be allowed to participate as well. I don’t care if they’re sick or in Cancun.” Boyko said.

“I think it’s pretty clear because the whole intention of FOIA is to ensure transparency in government. I can’t imagine why the legislature would think it would be okay for board members to be able to attend electronically without noticing the public and not include the ability for participation by the public.” Boyko added.

During a hearing on Boyko’s complaint about the library board’s August meeting, the FOIC hearing officer questioned whether the August meeting—where members and a presenter participated remotely—met the definition of a hybrid meeting. The hearing officer asked Boyko whether she was aware a board member is able to always participate remotely, even providing notice hours before a meeting starts and after public notice of a meeting has gone out, without converting the meeting to a hybrid format. Boyko said she didn’t read the statute that way.

Boyko is not the first person to bring a similar challenge about what constitutes an electronic meeting against a municipal agency. The FOIC tracks complaints based on whether they are about the records or meetings side of FOIA, but does not track complaints with any more specificity. As a result, and because this is a relatively new area in the law, it’s difficult to say whether issues about notice and participation in remote meetings have increased.

In October 2024, the FOIC found that the Weston Board of Selectman (BOS) violated FOIA by failing to properly notice a hybrid meeting. But, it found that the board did not violate FOIA by allowing participants to electronically join but not participate in the meeting.

In one of two related complaints, James Maggio alleged that the agenda for the BOS’ December 7, 2023 regular meeting, which was held in a hybrid format, was posted roughly 24 hours in advance instead of the 48 hours required by law.

While the town admitted to not posting the agenda on time, they did briefly argue that the meeting was not hybrid because the public was allowed to electronically view the meeting but not participate. In a post-hearing brief, they did concede it was a hybrid meeting.

According to the FOIC’s findings, the BOS then decided to return to holding only in-person meetings for the sake of convenience. They livestreamed the meetings via Zoom, allowing members of the public to watch but not participate. They used this setup during a December 21, 2023 regular meeting. Again, the meeting agenda was posted less than 48 hours prior to the meeting. The BOS argued that they were not required to provide 48 hours’ notice for the meeting because it was not “accessible to the public by means of electronic equipment.”

The complaint was the first time the FOIC considered the meaning of “accessible to the public by means of electronic equipment,” added to FOIA by the 2022 law.

The commission determined that while FOIA does not specify whether a meeting is electronically accessible if the public if they can participate as they would if they intended in person, it does require electronic meetings to be noticed as such and for agendas to reflect this, suggesting it was the legislature’s intent for the remote meeting requirements to apply “when the public was allowed to participate remotely as if they attended in person.” The commission noted the history of the law on remote participation—originating from COVID-19 emergency orders that specified remote participation included the opportunity to publicly comment as at public meetings.

They concluded that the December 21 meeting had not been accessible electronically within the meaning of the statute and the BOS therefore did not violate FOIA.

This finding may become relevant to Boyko’s complaints. As of publication, the FOIC has not issued a final decision.

The FOIC’s finding on remote participation has the potential to be the most far-reaching of the issues Boyko has brought forward, but it’s not the only one.

There are clear-cut violations of FOIA in the library’s meeting minutes, including removing reference to an executive session that was held in violation of the law’s requirements. The library has already held FOIA training on complying with FOIA, ahead of its findings on Boyko’s complaints.

Boyko recently met a deadline to provide briefs for the three cases that have had hearings. The FOIC’s findings are likely to come shortly.

During the hearings, Boyko said of FOIA that it “may well be one of, if not the single most, important laws in our state because it ensures transparency and accountability to the people who the government exists to represent.”

And transparency–and what it means to Simsbury residents trying to follow their local government–is ultimately at the heart of Boyko’s complaints.

“While I appreciate the service of our volunteer Board members, with the ‘depth on the bench’ and a robust 9 person Board, we should have ample knowledge, skill and hands on deck so to speak to correctly notice and conduct Board meetings according to the law. I understand that mistakes can be made from time to time, but many of the Boards and Commissions in town, of which there are over 21, seem to operate more like small clubs than like town governance responsible for millions of taxpayer dollars. I have a full time commission only job and a child in college.” Boyko said during one FOIC hearing. “I did not want to spend time researching the law, writing up complaints, and taking a day off of work to spend in hearings in Hartford. I just wanted to be able to keep informed about what my town government was doing. Unfortunately, there were so many deviations from Freedom of Information statutes that it became almost impossible to follow and participate in the most basic town meetings. The Library Board meetings had so many egregious violations that I showed up to meetings that were cancelled at the last minute due to lack of notice and missed meetings I would have liked to observe or participate in that were not properly noticed. After a series of conversations and email exchanges with the Library Director and Board Chair I felt I needed to take the next step that FOIA provided to the public to ensure transparent government in Simsbury.”

Boyko’s statement is reminiscent of the district court’s finding that the Plainfield Zoning Board of Appeals was not relieved of its burden to follow FOIA simply because it is comprised of volunteers. As Boyko pointed out, FOIA is a law and needs to be followed like any other law.

“When I said something not too long ago—you’re operating illegally, in violation of the law—someone said afterwards, “really, we’re breaking the law?” Well, yeah, you are. It’s FOIA. That’s the law.” Boyko told Inside Investigator, “It’s not guidance. It’s not a suggestion. It’s not a good idea. It’s the law. I’m not saying someone’s going to come take you away in handcuffs, but you are breaking the law. And I am correct on that.”

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