FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 8, 2007, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for the purposes of hearing with Docket #FIC 2006-604, Alfred L. Shull v. Board of Education, Regional School District #6.

 

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.  By letter of complaint dated October 24, 2006, and filed on October 26, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to adequately describe on the respective meeting agendas the reason for convening in executive sessions on September 27, October 4, and October 25, 2006 (hereinafter “the executive sessions”).

 

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

 

The 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., in relevant part, provides:

 

(6)  “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes: …(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.  It is found that the respondent held meetings on the dates referenced in paragraph 2, above, during which the respondent convened in executive session.

 

6.  It is found that the respondent announced at each meeting that it would convene in executive session to discuss attorney-client privileged records.

 

7.  It is found that the agendas corresponding with and prepared in advance of each of the meetings described in paragraph 2, above, indicated the following, in relevant part:

“Discussion/possible action regarding attorney-client privileged communication

Possible executive session”.

8.  At the hearing in this matter, the respondent contended that during the executive sessions in question it discussed documents that were exempt from disclosure pursuant to §1-210(b)(10), G.S.  In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”

 

9.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, 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.

10.  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. . . .

11.  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.

12.  It is found that during the meetings, the respondent discussed documents containing legal advice previously sought by the respondent of their counsel, Shipman & Goodwin LLP. 

13.  It is also found that the documents are written communications transmitted in confidence between the respondent and its counsel.

14.  It is found that the documents described in paragraph 12, above, are exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.

15.  Based on the facts and circumstances of this case, it is concluded that the agendas referenced in paragraph 2, above, adequately described the business to be transacted, within the meaning of §1-225, G.S., and therefore the respondent did not violate such provision.

 

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 July 25, 2007.

 

________________________________

Petrea A. Jones

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:

 

Barbara L. Breor

Town Clerk

Town of Goshen

42 North Street

PO Box 54

Goshen, CT 06756

 

Board of Education,

Regional School District #6

c/o Anne H. Littlefield, Esq.

and Erin O. Duques, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-560FD/paj/7/26/2007