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 hearing with Docket #FIC 2006-560, Barbara L. Broer v. Board of Education, Regional School District #6.

 

As a preliminary matter, the respondent moves that this complaint be dismissed because the Commission lacks jurisdiction over aspects of the complainant’s complaint concerning meetings on certain dates due to the complainant’s alleged failure to timely file a complaint with respect to those dates.

 

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 filed with the Commission on November 13, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening in executive session for an improper purpose and failing to adequately describe on the respective meeting agendas the reason for convening in executive sessions on September 27, October 4, and October 11, and October 25, 2006.

 

3.  Because the complaint in this matter was filed more than thirty days following the September 27, October 4, and October 11, 2006 executive sessions, the Commission necessarily must determine whether it has subject matter jurisdiction over any alleged violation occurring at those executive sessions.

 

4.  Section 1-206(b)(1), G.S., provides in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. 

 

5.  It is found that the executive sessions of the respondent held on September 27, October 4, and October 11, 2006, were neither secret nor unnoticed, within the meaning of §1-206(b)(1), G.S.

 

6.  It is found that the notice of appeal in this matter was filed more than thirty days after the September 27, October 4, and October 11, 2006 executive sessions of the respondent. 

 

7.  Consequently, it is concluded that with respect to the meetings on September 27, October 4, and October 11, 2006, the complainant failed to file his complaint in a timely manner and in accordance with the provisions of §1-206(b)(1), G.S.

 

8.  It is therefore concluded that the Commission has no jurisdiction to address alleged violations occurring at the executive sessions held on September 27, October 4, and October 11, 2006.

 

9.  It is found that the respondent held a meeting on October 25, 2006, during which the respondent convened in executive session.

 

10.  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.

 

11.  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.”

 

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

 

13.  It is found that the agenda of the executive session indicated the following, in relevant part:

Discussion/possible action regarding attorney-client privileged communication

Possible executive session.

14.  At the hearing in this matter, the respondent contended that during the executive session 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….”

 

15.  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.

16.  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. . . .

17.  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.

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

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

20.  It is found that the documents described in paragraph 18, above, are exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.

21.  Based on the facts and circumstances of this case, it is concluded that the agenda 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. 

 

22.  It is also concluded that the executive session was for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200, G.S.

 

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:

 

Alfred L. Shull

11 Shelbourne Court

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/2006-604FD/paj/7/26/2007