FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Henry E. Buermeyer,

Complainant

against Docket #FIC 88-364

Superintendent of Groton Public Schools, Groton Board of Education, and Attorney to the Groton Board of Education,

Respondents January 11, 1989

The above-captioned matter was heard as a contested case on October 13, 1988, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

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

1. The respondents board and superintendent are public agencies within the meaning of §1-18a(a), G.S.

2. It is found that the respondent attorney, Loren Lettick, is retained as a private consultant to the respondent board, and is not an employee of the board.

3. It is found that under the circumstances of this case the Commission has no jurisdiction over the respondent attorney.

4. The respondent board held a special meeting on August 8, 1988, the notice for which stated that the board would meet in executive session to:

a) discuss a written opinion of the board's attorney

concerning the statutory authority of board members and the

superintendent of schools; and

b) discuss strategies regarding pending claims and

litigation.

Docket #FIC 88-364 Page Two

5. The minutes of the respondent board's August 8, 1988 executive session stated that a discussion was held in executive session concerning the legal opinion of counsel and the pending freedom of information complaint of the New London Day.

6. By a letter of complaint filed with the Commission on September 8, 1988 the complainant alleged that the respondent board's discussion of the written opinion of the board's attorney in executive session violated the Freedom of Information Act in that:

(a) it was not a proper purpose for an executive session;

(b) the respondents' notice of the special hearing

violated the Freedom of Information Act in that it failed

to properly inform the public as to what specific claims or

litigation would be discussed in executive session;

(c) the minutes of the August 8, 1988 special

meeting failed to disclose who was in attendance at the

executive session; and

(d) the respondents failed to provide prompt

access to public documents.

7. It is found that a memorandum attached to the agenda, clarifying the pending claims as those relating to a Freedom of Information complaint filed by Kathleen Edgecomb of the New London Day, was made available only to board members and not the general public.

8. It is concluded, therefore, that the respondent board violated §1-21(a), G.S., by not stating the reason for the executive session in such a way as to give meaningful notice to the public of the business to be conducted.

9. The respondents claim that the executive session of August 8, 1988 was held, in part, to discuss the written opinion prepared by the board's attorney and that such a communication is exempt from disclosure under §1-19(b)(10), G.S., as privileged by the attorney-client relationship.

10. The respondents further claim that §1-18a(e)(5), G.S., provides that a public agency may convene in executive session to discuss matters that are privileged by the attorney-client relationship.

Docket #FIC 88-364 Page Three

11. It is found that for a communication to be privileged by the attorney-client relationship, such communication must be made in confidence by the client who is seeking legal advice from a professional legal advisor in his capacity as such.

12. It is found that the respondent board is a client of the board attorney and, therefore, may assert the attorney-client privilege for communications privileged by that relationship.

13. It is found that one purpose of the executive session was to discuss the written opinion of the board attorney concerning the authority of board members and the respondent superintendent.

14. It is found, however, that the respondents failed to prove that there was any information given in confidence by the board to its attorney which was included in his written opinion.

15. It is concluded, therefore, that the written opinion which was the subject of the executive session in question is not exempt from disclosure under §1-19(b)(10), G.S., because it was not privileged by the attorney-client relationship.

16. It is further found that the respondents failed to prove that the respondent board's discussion of the written opinion in the August 8, 1988 executive session contained any information communicated in confidence by the board to its attorney.

17. It is concluded that the discussion of the written opinion was not permissibly held in executive session under §1-18(e)(5), G.S., because it was not a discussion of a record exempt under §1-19(b), G.S.

18. It is concluded, therefore, that the respondents violated §§1-18a(e)(5) and 1-21, G.S., by holding a discussion in executive session of a record which was not exempt from disclosure, nor for any other permissible purpose.

19. It is further concluded that the respondents violated §1-21g(b), G.S., by convening to discuss in executive session, with the board attorney, oral communications which are not permissibly held in executive session under §1-18a(e), G.S.

Docket #FIC 88-364 Page Four

20. It is found that the second purpose of the executive session was to discuss strategies regarding a complaint filed with the Commission by Kathleen Edgecomb of the New London Day.

21. It is further found that a complaint to the Commission is a "claim" within the meaning of §1-18a(e)(2), G.S.

22. It is concluded, therefore, that the portion of the executive session which dealt with the pending Freedom of Information complaint was convened for a purpose permitted under §1-18a(e)(2), G.S.

23. It is found that the minutes of the August 8, 1988 special meeting of the respondent board did not contain the names of the persons in attendance at the executive session.

24. It is concluded, therefore, that the respondent board violated §1-21g(a), G.S., by not disclosing in the minutes of the executive session all persons who were in attendance.

25. By letter dated August 9, 1988 the complainant requested a copy of the minutes of the August 8, 1988 special meeting of the respondent board; and on August 10, 1988 the complainant further requested a copy of the board attorney's written opinion, as well as a copy of the complete information package concerning the call of the special meeting which was mailed to board members.

26. By letter dated August 11, 1988 the respondent superintendent indicated to the complainant that a copy of the minutes had been mailed; and by letter dated August 19, 1988 the respondent superintendent advised the complainant that she was enclosing the information requested in the complainant's August 10, 1988 letter.

27. It is found that a copy of the memorandum, which was sent to the board members clarifying the second item to be discussed in executive session, was enclosed with the respondent superintendent's letter of August 19, 1988.

28. It is further found that the complainant's request was fulfilled within nine days of the date when the request was made.

29. It is found that fulfilling the complainant's request within nine days was reasonably prompt and did not violate the mandate for prompt access to documents.

Docket #FIC 88-364 Page Five

30. It is concluded, therefore, that the respondents did not violate §§1-15 and 1-19(a), G.S.

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

1. The respondent board henceforth shall convene in executive session only for one or more of the purposes listed in §1-18a(e), G.S.

2. The respondent board henceforth shall publicly state before convening in executive session, in a way that meaningfully communicates to the public, the actual purpose for any executive session, as required by §1-21(a), G.S.

3. The respondent henceforth shall issue complete agenda and notices of its regular and special meetings, which shall contain meaningful notice to the public of the business to be conducted in both the open and closed portions of the meeting, in compliance with §1-21(a), G.S.

4. The respondent henceforth shall include in its minutes the names of all persons present at each executive session, except job applicants who attend for the purpose of being interviewed, in compliance with §1-21g(a).

Approved by order of the Freedom of Information Commission at its regular meeting of January 11, 1989.

Catherine H. Lynch

Acting Clerk of the Commission