FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Hartford Federation of Teachers,

 

                                Complainant

 

                against                   Docket #FIC 94-188

 

Hartford Board of Education,

 

                                Respondent                          April 5, 1995

 

                The above-captioned matter was heard as a contested case on December 27, 1994 and January 13, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing, the complainant withdrew his complaint as to Patrick Kennedy, who has accordingly been removed as a respondent in this case.  This case was consolidated for hearing with docket #FIC 94-181, Rick Green and The Hartford Courant against William E. Meagher, Thelma E. Dickerson, Candida Flores-Sepulveda, Arthur A. Brouillet, Jr., Edward J. Carroll, Kathy Evans, Stephanie S. Lightfoot, Elizabeth Brad Noel and Hartford Board of Education.

 

                After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

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

 

                2.             By letter of complaint filed June 2, 1994, the complainants appealed to the Commission, alleging that the respondent improperly convened in executive session on May 31, 1994, and requesting that the vote regarding the subject of the executive session be declared null and void.

 

                3.             It is found that the respondent was, at all times material, entertaining an offer by Education Alternatives Inc., ("EAI") to manage the Hartford public school system.

 

                4.             It is found that, on or about May 18, 1994, the Hartford corporation counsel advised the board of education that any contract with EAI should be be put out for competitive bidding through the office of the City of Hartford purchasing department.

 

                5.             It is found that the board then requested the city purchasing director to put out a request for proposals ("RFP") for management of the school system.

 

Docket #FIC 94-188                                             Page 2

 

                6.             It is found that the purchasing director engaged the assistance of a task force consisting of herself, the city manager and deputy city manager, corporation counsel and his staff, two board members, and staff of the board of education.

 

                7.             It is found that the task force then met to discuss what was to be the form and content of the request for proposal.

 

                8.             It is found that the request for proposal was then drafted by the staff of office of the corporation counsel, over the course of about one week.

 

                9.             It is found that, as sections of the request for proposal were drafted, working drafts of those sections were circulated for comment among the task force members who had expertise in those areas.

 

                10.           It is concluded that the circulated working drafts were "preliminary drafts" within the meaning of 1-19(b)(1), G.S.

 

                11.           It is found that the draft was completed on or about May 31, 1994 and distributed to the purchasing director and the members of the respondent board of education before the May 31, 1994 meeting.

 

                12.           It is found that the respondent convened in executive session at the May 31, 1994 meeting for the stated purpose of receiving and reviewing confidential communication and documents regarding the RFP process and the proposed contract for a public-private management partnership.

 

                13.           It is found that the executive session was attended by the respondent and by staff of the office of the corporation counsel.

 

                14.           It is found that certain changes were made in the proposed RFP as a result of the executive session, and that the modified RFP was approved by the respondent at the May 31, 1994 meeting.

 

                15.           It is found that both the draft RFP considered by the respondent, and the final RFP approved by the respondent, were made available by the respondent's counsel to a Hartford Courant reporter immediately after the May 31, 1994 meeting.

 

                16.           It is found that the revised RFP was then issued by the purchasing division of the department of finance on the following day, June 1, 1994.

 

                17.           The respondent maintains that the executive session was permissible to discuss a document that was exempt from disclosure under the FOI Act, and also to communicate confidentially with its counsel, the office of the corporation counsel.

 

Docket #FIC 94-188                                             Page 3

 

                18.           Section 1-21g(b), G.S., provides:

 

                An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subsection (e) of section 1-18a.

 

                19.           It is concluded that 1-21g(a), G.S.,  explicitly requires that an executive session be for a purpose permitted by 1-18a(e), G.S., and may not be convened to receive or discuss privileged oral communications absent such a permitted purpose.

 

                20.           Section 1-18a(e)(5), G.S., provides that an executive session may be permissibly convened for "discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19."

 

                21.           It is therefore concluded that the May 31, 1994 executive session was permissible if and only if the draft RFP discussed therein was exempt from disclosure pursuant to 1-19(b), G.S.

 

                22.           The respondent maintains that the draft RFP was exempt from disclosure because it was a preliminary draft within the meaning of 1-19(b)(1), G.S.

 

                23.           Section 1-19(b)(1), G.S., provides that disclosure is not required of "preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

 

                24.           It is found that the respondent determined that the public interst in withholding the draft RFP clearly outweighed the public interest in disclosure.

 

                25.           It is found that the draft submitted to the director of purchasing and the respondent was a later draft than the preliminary drafts circulated among task force members.

 

                26.           It is found that the respondent intended to approve an RFP at its May 31, 1995 meeting.

 

                27.           It is found that the draft RFP was the task force's final draft of the RFP, submitted to the respondent with the intention that it either be approved as is, or modified and then approved.

 

                28.           It is found that only two substantive changes in the draft RFP were made during the May 31, 1994 executive session.

 

Docket #FIC 94-188                                             Page 4

 

                29.           It is concluded that the draft RFP considered by the respondent at its May 31, 1994 executive was a penultimate, and not preliminary, draft.

 

                30.           Even if the RFP considered by the respondent at its May 31, 1994 meeting was a preliminary draft within the meaning of 1-19(b)(1), G.S., 1-19(c), G.S. provides in relevant part:

 

                                Notwithstanding the provisions of subdivision (1) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency

 

                31.           It is found that the draft RFP was the RFP recommended by the office of the corporation counsel through the purchasing director to the respondent.

 

                32.           It is found that the recommended RFP was transmitted between the office of the corporation counsel, the purchasing director, and the respondent, and was therefore transmitted either within or between agencies, depending on whether those offices are considered separate agencies or not.

 

                33.           It is found that the recommended RFP comprised part of the process by which a decision to hire a private manager for the Hartford Public schools would be formulated.

 

                34.           It is found that the recommended RFP had, at the time of the May 31, 1994 meeting, already been submitted to the respondent.

 

                35.           It is therefore concluded that the recommended RFP was required to be disclosed by 1-19(c), and was therefore not exempt pursuant to 1-19(b)(1), whether or not it was a preliminary draft.

 

                36.           The respondent also maintains that the draft RFP was exempt from disclosure because it was privileged by the attorney-client relationship within the meaning of 1-19(b)(10), G.S.

 

                37.           Section 1-19(b)(10), G.S., provides that disclosure is not required of "communications privileged by the attorney-client relationship."

 

Docket #FIC 94-188                                             Page 5

 

                38.           It is found that the draft RFP is stamped "confidential and privileged under attorney-client and attorney work product privileges."

 

                39.           It is found, however, that the draft RFP does not on its face contain any confidential information or communications, or refer to any confidential communications or information.

 

                40.           It is therefore concluded that the draft RFP was not privileged under the attorney-client relationship.

 

                41.           The respondent also maintains that the draft RFP was confidential and privileged under the attorney work product doctrine.

 

                42.           It is found, however, that the draft RFP was not prepared in anticipation of litigation or for trial.

 

                43.           Further, it is concluded that the work product doctrine does not state an exemption to the requirements of the FOI Act.

 

                44.           It is therefore concluded that the respondent violated 1-21(a), G.S., by convening in executive session for an impermissible purpose.

 

                45.           The Commission considers that the null and void order requested by the complainants is justified in light of the nature of the violations of the FOI Act found in this matter.  However, the Commission also finds that, given that the school year is already so far advanced, that such an order would make the students in the Hartford school system innocent victims of the board of education.  The Commission in its discretion therefore declines to order the actions taken as a result of the May 31, 1994 meeting null and void.  The Commission also notes, however, that the issue of a civil penalty against the respondents is considered in docket #FIC 94-181, Rick Green and The Hartford Courant against William E. Meagher, Thelma E. Dickerson, Candida Flores-Sepulveda, Arthur A. Brouillet, Jr., Edward J. Carroll, Kathy Evans, Stephanie S. Lightfood, Elizabeth Brad Noel, and Hartford Board of Education.

 

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

 

                1.             Henceforth the respondent shall strictly comply with the requirements of 1-18a(e), 1-21(a), and 1-21g(a), G.S.

 

Docket #FIC 94-188                                             Page 6

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 5, 1995.

 

                                                                              

                                                Debra L. Rembowski

                                                Clerk of the Commission

 

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

HARTFORD FEDERATION OF TEACHERS

c/o Brian A. Doyle, Esq.

Ferguson & Doyle, P.C.

35 Marshall Road

Rocky Hill, CT 06067-1400

 

HARTFORD BOARD OF EDUCATION

c/o Karen K. Buffkin, Esq.

Office of the Corporation Counsel

550 Main Street

Hartford, CT 06103

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission