FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 2, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

On August 18, 2010, the undersigned hearing officer submitted a report that the Commission considered at its September 22, 2009 meeting, but the hearing officer withdrew the report during the Commission’s discussion.

 

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

 

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that by letter filed December 28, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act on December 15, 2009, by convening in executive session for an improper purpose.  The complainant also alleged that the minutes of the meeting failed to disclose all persons who attended the executive session.  The complainant requested the imposition of a civil penalty.

 

3.      Section 1-225(a), G.S., provides, in relevant part that  “[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public…”

 

4.      Section 1-200(6), G.S., provides in relevant part:

 

“Executive sessions” means 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.

 

5.      According to §1-200(8), G.S., “ ‘Pending claim’ means 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 in an appropriate forum if such relief or right is not granted.”

 

6.      According to §1-200(9), G.S., “ ‘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 a court which seeks to enforce or implement legal relief or a legal right;  or (C)  the agency's consideration of action to enforce or implement legal relief or a legal right.”

 

7.      It is found that at its regular meeting of December 15, 2009, the respondents voted to hold an executive session to discuss, as the agenda stated, “Pending Litigation:  It is proposed that the Board of Education go into Executive Session for the purpose of discussing potential ACLU litigation.” 

 

8.      It is found that the American Civil Liberties Union (“ACLU”) and Americans United for Separation of Church and State (“Americans United”) published a press release on November 18, 2009, announcing their intention to sue the Town of Enfield if it refused to change the location of its high school graduation from First Cathedral Baptist Church (“First Cathedral”). 

 

9.      It is found that the respondents, like Enfield, planned to hold their graduation ceremony at First Cathedral.

 

10.  It is found that a letter sent by the ACLU and Americans United on November 18, 2009 to Enfield stated that the ACLU and Americans United “have been retained to file litigation” to stop the use of First Cathedral for graduation. 

 

11.  It is found that the press release noted that four other area public schools, including the respondents, used First Cathedral for their graduations and that ACLU and the Americans United planned to “follow up with those schools.” 

 

12.   It is further found that a few weeks before the press release, the respondents received a detailed request for records from ACLU and Americans United relating to the respondents’ decision to hold graduation at First Cathedral.

 

13.   It is found, however, that although the respondents anticipated that they would be sued if they did not decide to hold graduation elsewhere, they had not received a written notice of an intent to institute legal action, nor was there actual litigation pending at the time of the December 15, 2009 meeting.

14.   It is found that there was neither a pending claim nor pending litigation concerning the graduation at the time of the executive session on December 15, 2009.  It is found that the agenda did not state a proper reason for entering executive session.  

 

15.     The respondents claim that they entered executive session also to discuss with their attorney a written memorandum that he prepared concerning anticipated litigation by the ACLU and Americans United.

 

16.     It is found that the respondents discussed a legal memorandum drafted by respondent’s counsel in the executive session. The respondents submitted a copy of such legal memorandum to the Commission for in camera inspection.  Such document is hereby identified as IC-2009-779-1 through IC-2009-779-4, entitled on the in camera index as “Memorandum Re:  An Analysis of Holding High School Graduation at First Cathedral.”  The respondents claimed the document is a public record exempt from disclosure pursuant to §1-210(b)(10), G.S.

 

17.     Section 1-200(5), G.S, defines “public records” to mean “…any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency…”.

 

18.     It is found that IC-2009-779-1 through IC-2009-779-4 are public records within the meaning of §1-200(5), G.S.

 

19.     In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”

 

20.     Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id., at 149.

 

21.     Section 52-146r(2), G.S., defines “confidential communications” as:

all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .”

 

22.     The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

 

23.     It is found that IC-2009-779-1 through IC-2009-779-4 consist of a written communication transmitted in confidence between the respondents and a government attorney relating to legal advice sought by the respondents, within the meaning of §52-146r(2), G.S.

 

24.     It is concluded that in camera records IC-2009-779-1 through IC-2009-779-4 constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.

 

25.     It is concluded, therefore, that IC-2009-779-1 through IC-2009-779-4 were permissively exempt from disclosure pursuant to §1-210(b)(10), G.S., at the time of the executive session on December 15, 2009.

 

26.     It is further concluded that the respondents’ executive session was held for a proper purpose, pursuant to §1-200(6)(E), G.S.

 

27.   Section 1-225(f), G.S., provides: “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.”

 

28.     It is found that the respondents failed to state the proper reason for their executive session either on the meeting’s agenda or at the time of entering executive session.  It is concluded, therefore, that the respondents violated §1-225(f), G.S.

 

29.     With respect to the allegation described in paragraph 2, above, that the minutes of the December 15, 2009 meeting did not disclose who attended the executive session, §1-231(a), G.S., provides:

 

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

30.     It is found that the respondents concede that the minutes failed to disclose who attended the executive session at the December 15, 2009 meeting.  It is found that the respondents acknowledge the need to correct such minutes.   

 

31.     It is concluded that the respondents violated §1-231(a), G.S., by failing to disclose all persons in attendance at the December 15, 2009 executive session.

 

32.     The Commission declines to consider the complainant’s request for the imposition of a civil penalty against the respondents.

 

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

 

1.  The respondents shall forthwith amend the minutes of their regular meeting of December 15, 2009 to disclose all persons who attended the executive session.

 

2.  Henceforth, the respondents shall comply with the requirements of §§1-225(f) and 1-231, G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 17, 2010.

 

 

__________________________

Cynthia A. Cannata

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:

 

Bradshaw Smith

23 Ludlow Road

Windsor, CT  06095

 

Milo Peck, President, Board of Education, Windsor Public Schools; and

Board of Education Windsor Public Schools

c/o Gary R. Brochu, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT  06103-1919

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-779/FD/cac/11/22/2010