FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 13, 2008, at which time the complainants and the respondent 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 and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G. S.

 

2.  It is found that the respondent board conducted a regular meeting on March 27, 2008 (hereinafter “the meeting”), and that, during such meeting, such board entered executive session (hereinafter “the executive session”). 

 

3.  By letter dated April 3, 2008, and filed with the Commission on April 7, 2008, the complainants appealed to the Commission, alleging that the respondent board violated the Freedom of Information (hereinafter “FOI”) Act by discussing a matter during the executive session, without properly indicating on the agenda that such matter would be discussed.  Specifically, the matter was a decision by the respondent board to provide the complainant Shultz with copies of public records, along with a bill for sixty-four dollars for such copies. 

 

4.  Section 1-225(a), G. S., provides, in relevant part that:

 

(a)  The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be public . . .

 

5.  Section 1-225(f), G. S., further provides that:

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.

 

6.  Section 1-200(6), G. S., defines “executive session” to mean a “meeting of a public agency at which the public is excluded for one or more of the following purposes: …(B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled… and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

7.  Section 1-225(c), G. S., provides in relevant part that:

 

The agenda of the regular meetings of every public agency . . . shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business . . . .

 

8.  It is found that, upon a two-thirds affirmative vote, the respondent board held the executive session during the meeting for the following stated purpose:  “…Discussion of Attorney/Client Privilege Documents and Pending Litigation.”  It is further found that such purpose was also set forth on the respondent’s agenda for the meeting.  

 

9.  Sections 1-200(8) and 1-200(9), G. S., set forth the following definitions:

 

(8) “Pending claim” means a written notice to an agency which sets for a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

10.  It is found that, prior to the meeting, the complainants had filed two separate complaints against the respondent with this Commission, specifically Docket #FIC 2008-015; Preston D. Shultz and Citizens for Prudent Spending v. Superintendent of Schools; and Board of Education, Woodstock Public Schools and Docket #FIC 2008-068; Preston D. Shultz and Citizens for Prudent Spending v. Superintendent, Woodstock Public Schools; and Woodstock Public Schools. It is further found that such complaints were pending at the time of the March 27, 2008, meeting and executive session. 

 

11.   It is also found that, prior to the meeting, the complainants had also filed with the respondent two letters, dated February 6, 2008 and February 27, 2008, requesting records other than the records at issue in Docket #FIC 2008-015 and Docket #FIC 2008-068.  It is further found that, at the conclusion of each letter, the complainant Shultz stated that he “was prepared to pursue whatever legal remedy is necessary to obtain access to the requested records.  I would note that willful violation of the open records law could result in a fine of up to $1000.”  It is found that the requests set forth in the February 6, 2008 and February 27, 2008, letters were pending at the time of the meeting and executive session. 

 

12.   Based upon the facts and circumstances of this case, it is found that the complaints described in paragraph 10, above, and the request letters described in paragraph 11, above, constituted “pending claims,” within the meaning of §1-200(8), G. S., at the time of the meeting and executive session. 

 

13.  It is found that, during the executive session, the respondent discussed strategy with respect to the pending claims described in paragraph 12, above.  It is further found that, at the time of the executive session, the respondent was a party to such pending claims and that those claims had not been finally adjudicated or otherwise settled.    

 

14.  It is found that, after the executive session, the respondent reconvened in the public session of the meeting, and voted, first, to instruct its counsel to assert the attorney-client privilege with respect to both FOI complaints described in paragraph 10, above.  It is found that the respondent then voted to send the complainant Shultz a certified letter containing an invoice charging the complainant sixty-four dollars for the cost of materials copied and mailed in response to Mr. Shultz’s February 6, 2008 request letter, along with copies of public records.  It is also found that such votes were the result of the strategy described in paragraph 13, above.

 

15.  The respondent contends that the complaint should be dismissed, since it asserts that the executive session discussion was permissible.  However, the complaint alleges improper notice, rather than an improper discussion.

 

16.  The respondent also contends that the complaint should be dismissed because the votes described in paragraph 14, above, were natural incidents of the executive session discussion.  However, whether such votes were the natural incidents of the executive session discussion is also not dispositive of the issue of whether the notice described in paragraph 8, above, fairly apprised the public of the matters discussed during the executive session. 

 

17.  In Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public what business would be transacted.

 

18.  In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.

 

19.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

            20.  This Commission has repeatedly stated that in order for the public to be fairly apprised of the business to be transacted during an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session.  Therefore, descriptions such as “personnel,” “personnel matters,” “legal” or even “the appointment, employment, performance, evaluation, health, dismissal of a public officer or employee” are inadequate and do not state the reason for convening in executive session, within the meaning of §1-225(f), G. S.

 

            21.  It is found that the respondent board’s agenda item, that being a discussion of an attorney client privileged document and discussion of pending litigation, as described at paragraph 8, above, was inaccurate, since the respondent discussed neither an attorney-client privileged document, nor pending litigation, within the meaning of §1-200(9), G. S.  Rather, as found at paragraphs 12 and 13, above, the respondent discussed pending claims, within the meaning of §1-200(8), G. S.     

 

22.   Moreover, it is found that the public could not discern from the agenda item description described in paragraph 8, above, which particular pending claims would be discussed in the executive session.  Accordingly, it is found that such agenda item was both inaccurate and vague.  

 

23.  Although the respondent does not concede a violation of the FOI Act, it contends that the complaint should be dismissed because it asserts that, due to its later action at a subsequent meeting, the Commission can impose no meaningful remedy.  It is found that, as a matter of caution, the respondent added the complainants’ chief issue concerning the invoice described in paragraph 14, above, to the agenda of the respondent’s regular meeting of August 28, 2008.  It is further found that, in open session during such meeting, the respondent discussed assessing a sixty-four dollar fee upon the complainant for the copies of public records described in paragraph 14, above, and then voted to do so.

 

24.  Under the facts and circumstances of this case, the Commission will not declare null and void the votes taken at the meetings, which are described in paragraph 14, above.  However, such a decision does not render the Commission without jurisdiction in this matter.

 

25.  It is concluded that the respondent violated §§1-225(c) and 1-225(f), G. S.,in this matter. 

 

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 provisions of §§1-225(c) and 1-225(f), G. S.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 25, 2009.

 

 

____________________________

S. Wilson

Acting 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:

 

Preston D. Shultz and the Citizens

for Prudent Spending 

P.O. Box 285

Woodstock, CT 06281

 

Board of Education, Woodstock

Public Schools

C/o Anne H. Littlefield, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-236FD/sw/3/4/2009