FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

William C. Rado,

Complainant

against Docket #FIC 87-296 and #FIC 87-306

Naugatuck Board of Mayor & Burgesses,

Respondent January 27, 1988

The above-captioned matters were heard as contested cases on November 18, 1987, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The cases were consolidated with the agreement of the parties because of the similarity of the complaints.

After consideration of the entire record, the following facts are found:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. On October 6, 1987, the respondent, acting as the retirement board, held a special meeting at which it convened in executive session.

3. On or about October 10, 1987, the complainant requested a copy of a letter dated September 21, 1987, that the respondent had received from its attorney.

4. By letter dated October 13, 1987 and filed with the Commission on October 14, 1987, the complainant alleged the respondent wrongfully denied the public the right to attend a portion of its October 6, 1987 special meeting in violation of the Freedom of Information Act.

5. By letter dated October 19, 1987, the respondent denied the complainant's request for the record described in paragraph 3, above.

6. By letter dated October 20, 1987 and filed with the Commission on October 21, 1987, the complainant alleged the respondent violated the Freedom of Information Act in its refusal to release the record described in paragraph 3, above.

Docket #FIC 87-296 & #FIC 87-306 Page 2

7. Specifically, the complainant alleged the respondent, acting as the retirement board, violated §§1-18a(e), 1-19(a) and 1-21(a), G.S., in that:

a. The respondent failed to state the specific item to be discussed at an executive session on the agenda for its October 6, 1987 special meeting.

b. The respondent convened in executive session to discuss the complainant's pension without giving prior notice to the complainant.

c. The respondent failed to provide the complainant with a copy of the letter described in paragraph 3, above.

d. The respondent convened in executive session for an improper purpose.

8. The respondent claims:

a. It stated the specific item to be discussed at the executive session on the agenda for its October 6, 1987 special meeting in compliance with the requirements of §1-21(a), G.S.

b. Since the complainant was no longer a public officer or employee at the time of the executive session, he was not entitled to receive prior notification of that executive session within the meaning of §1-18a(e)(1), G.S.

c. The letter described in paragraph 3, above, is a communication privileged by the attorney-client relationship and is exempt from public disclosure under §1-19(b)(10), G.S.

d. It permissibly convened in executive session to discuss the contents of a record privileged by the attorney-client relationship under §§1-18a(e)(5) and 1-19(b)(10), G.S.

9. At the hearing, the respondent requested an in camera inspection of the letter described in paragraph 3, above, by the presiding officer.

Docket #FIC 87-296 & #FIC 87-306 Page 3

10. Pursuant to §1-21j-35(a) of the Commission's Regulations, in camera inspections by the presiding officer are prohibited. The respondent's request therefore was denied.

11. It is found the respondent stated on the agenda for its October 6, 1987 special meeting that it intended to discuss and possibly act upon the letter described in paragraph 3, above, in executive session.

12. It therefore is concluded the respondent provided the public with sufficient notice of what would transpire at the executive session within the meaning of §1-21(a), G.S.

13. It is found the respondent convened in executive session to discuss the legality of the complainant's pension in accordance with the letter described in paragraph 3, above.

14. It also is found the complainant was no longer employed by the Borough of Naugatuck at the time of the respondent's October 6, 1987 special meeting and therefore the discussion described in paragraph 14, above, did not concern the employment of a public officer or employee within the meaning of §1-18a(e), G.S.

15. It therefore is concluded the respondent was not required to provide the complainant with prior notice of its intended executive session under §1-18a(e)(1), G.S.

16. It is found the letter described in paragraph 3, above, is a public record within the meaning of §1-18a(d), G.S.

17. It is found, however, the letter described in paragraph 3, above, is a communication between the respondent and its attorney, made in confidence, for the purpose of seeking legal advice.

18. It is concluded the letter described in paragraph 3, above, is a communication privileged by the attorney-client relationship and is exempt from public disclosure under §1-19(b)(10), G.S.

19. It further is concluded the respondent permissibly convened in executive session to discuss the contents of a record, exempt from public disclosure under §§1-18a(e)(5) and 1-19(b)(10), G.S.

Docket #FIC 87-296 and #FIC 87-306 Page 4

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The complaint is hereby dismissed.

Approved by order of the Freedom of Information Commission at its regular meeting of January 27, 1988.

Catherine H. Lynch

Acting Clerk of the Commission