FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was consolidated for hearing with Docket #FIC 2006-400, Paul Choiniere and the Day v. Norwich Hospital Subcommittee, Norwich Hospital Advisory Committee, Town of Preston; Docket #FIC 2006-403, Paul Choiniere and the Day v. Norwich Hospital Advisory Committee, Town of Preston; and Docket #FIC 2006-413, Paul Choiniere and the New London Day v. First Selectman, Town of Preston. All four consolidated matters were heard as contested cases on October 5, 2006, at which time the complainant and the respondents in the above captioned matter appeared and presented testimony, exhibits and argument on the complaint.

           

            Subsequently, Reports of Hearing Officer were considered by the Commission for all four consolidated cases on February 28, 2007, at which time a motion to adopt the Hearing Officer’s Reports failed by virtue of a 2-2 vote. The Commissioners then voted unanimously to remand the matters to a staff member to draft alternative, unsigned reports.  Thereafter, Proposed Final Decisions on all four consolidated cases were considered by the Commission on July 25, 2007, at which time the Commission voted to remand the matters again to a staff member to draft alternative, unsigned reports. The Commission specifically directed staff to re-examine the respondents’ claims of exemption pursuant to §1-210(b)(7), G.S.

 

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)(A), G.S.

2.  It is found that by email dated August 10, 2006, the complainant addressed a request to respondent Congdon “to inspect the preliminary results of extensive environmental testing being done at the former Norwich State Hospital site” (the “requested records”). It is also found that the respondent Congdon is the first selectman of the Town of Preston. 

 

3.  It is found that by letter dated August 15, 2006, respondent Congdon declined to provide the requested records, claiming exemptions pursuant to §1-210(b)(1), G.S., and §1-210(b)(7), G.S.      

 

4.  By letter dated and filed with the Freedom of Information Commission (“Commission”) on August 17, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by: a) failing to provide “adequate public notice” of a meeting held at noon on August 9, 2006; b) holding an emergency meeting when there was no “identified and valid emergency” to justify such a meeting; c) holding an illegal executive session at the August 9, 2006 subcommittee meeting; d) holding an illegal executive session during its regular meeting at 7 p.m. on August 9, 2006; e) failing to respond to the complainant’s records request set forth at paragraph 2, above; and f) holding an illegal executive session at the August 16, 2006 meeting. Finally, the complainant requested that the respondents be ordered to attend formal training conducted by the Commission and be fined the maximum penalty provided by law.    

 

5.  Section 1-200, G.S., provides in relevant part:

 

(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.

 

6.  Section 1-210, G.S., provides in relevant part:

 

(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:  …  (7) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision …  (10) Records … or communications privileged by the attorney-client relationship ….

 

7.  Section 1-212(a), G.S., provides in relevant part that  “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.  Section 1-225, G.S., provides in relevant part:

 

(a) ….The votes of each member of any such public agency upon any issue before such public agency shall be … recorded in the minutes of the session at which taken….

 

….

 

(d) Notice of each special meeting of every public agency… shall be given not less than twenty-four hours prior to the time of such meeting; provided, in case of emergency, except for the General Assembly, either house thereof or any committee thereof, any such special meeting may be held without complying with the foregoing requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the Secretary of the State, the clerk of such political subdivision….

 

….

 

(f) 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.

 

9.  It is found that the Hospital Advisory Committee, Town of Preston (“respondent committee”), created a Norwich Hospital Subcommittee (“subcommittee”) with the following members: Joseph Biber, Chairman, Mike Sinko, Chairman, Kent Borner, Bob Congdon, and Sandy Ewing.

 

10.  It is found that the notice for an emergency meeting of the subcommittee to be held at noon on Wednesday, August 9, 2006 was filed in the town clerk’s office at 1:38 p.m. on August 8, 2006. It is further found that less than twenty-four hours notice was given for the emergency meeting.

 

11. It is found that the Town of Preston had contracted on November 2, 2005 to acquire the property known as the Norwich State Hospital from the State Department of Public Works (“DPW”).  Pursuant to that agreement, the Town would be responsible for any and all liabilities, costs and expenses arising from the need to clean up or to remediate pollution on, at, beneath or emanating from the property.  (DPW had conducted a Phase I and Phase II environmental assessment of the property, which indicated the presence of “certain environmental conditions” on the property.) 

 

12.  It is also found that the Town also entered into a development agreement for the property with Utopia Studios Ltd. (“Utopia”).  Utopia hired Earth Tech, an environmental consulting firm, to conduct a Phase III environmental assessment of the property to determine the nature of pollution there, the methods needed to get it cleaned up and the extent of hazardous materials found in the vacant buildings on the hospital campus, including lead paints, mold and asbestos.   Earth Tech also committed to delivering, no later than September 21, 2006, the Phase III assessment to the Town, at no cost to the Town.  It is not apparent that the Town provided any consideration to Earth Tech for this commitment.

 

13.  It is further found that the Town had its own environmental firm, GZA GeoEnvironmental, Inc. (“GZA”), and that Earth Tech representatives were eager to meet with GZA representatives to give them a progress report on Earth Tech’s Phase III environmental assessment at Earth Tech’s office in Concord, Massachusetts.  Earth Tech first contacted the Town on August 3, 2006, and a meeting was ultimately arranged on Tuesday, August 8, 2006 to take place the next day.  Although the meeting was originally conceived as a meeting between Earth Tech and GZA, by 1 p.m. on Tuesday, August 8, 2006, more than a quorum of the subcommittee also wished to attend, because of the possibility that representatives of Utopia would attend. Rather than delaying the meeting, a decision was made to post a notice for an emergency meeting. 

 

14.  It is further found that the minutes for the August 9, 2006 so-called emergency meeting did not set forth the nature of the emergency requiring the meeting. It is further found that there was no emergency that required the subcommittee to convene the 1:00 p.m. meeting on Wednesday, August 9, 2006.

 

15.  Based on the findings of fact set forth at paragraph 13 and 14, above, it is concluded that both the convening of an emergency meeting on August 9, 2006 and the minutes for such emergency meeting violated the requirements of §1-225(d), G.S.       

 

16.  It is found that, at the executive session, five or six maps, approximately thirty inches by forty inches in size, were reviewed, which identified areas of concern for contamination on the Norwich State Hospital property. 

 

17.  The respondents contend that the executive session was permitted pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S., because discussion of Earth Tech’s findings concerning environmental contamination would have resulted in the disclosure of information relating to the contents of real estate evaluations.

 

18.  It is concluded that the maps discussed in executive session constitute public records within the meaning of §1-200(5), G.S.

 

19.  It is also concluded that the respondents failed to prove that §§1-200(6)(E) and 1-210(b)(7), G.S., apply.

 

20.  It is found that the maps at issue in this case essentially showed and/or detailed the locations of environmental contamination.

 

21.  It is also found that the respondents failed to prove that the maps at issue in this case, as described in paragraph 20 above, constituted “real estate appraisals” or “engineering or feasibility estimates and evaluations” within the meaning of §1-210(b)(7), G.S.

 

22.  It is further found that the respondents failed to prove that the maps at issue in this case were “made for” the Town, as required for the application of §1-210(b)(7), G.S., since: Earth Tech contracted with Utopia and not the Town; the Town had hired its own environmental consultants; and Earth Tech’s commitment to provide the Town with the Phase III evaluation appears to have been simply a unilateral promise by Earth Tech.   Indeed, the respondents failed to prove that the maps at issue were ever delivered to the Town.

 

23.  It is therefore concluded that the maps at issue are not exempt from disclosure pursuant to §1-210(b)(7), G.S., and that the executive session was not permissible pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S.

 

24.  It is also concluded that the convening of an executive session for a purpose not authorized under §1-200(6), G.S., violated the provisions of §1-225(a), G.S.

 

25.  It is further concluded that by failing to record in the minutes the votes of each member on the motion to convene the impermissible executive session, the respondents technically violated the requirements of §§1-225(a) and (f), G.S. The violation is technical because the words: “So voted” imply a unanimous vote of the specified members present.       

 

26.  It is found that a regular meeting of the respondent Hospital Advisory Committee was convened at 7:00 p.m. on Wednesday, August 9, 2006, and that the purpose of the meeting was for the subcommittee to brief the respondent committee concerning the content of the oral report that Earth Tech had given the subcommittee that afternoon.

 

27.  It is also found that an executive session was convened at the August 9, 2006 regular meeting of the respondent committee. The maps reviewed by the subcommittee were not brought to the August 9, 2006 meeting of the respondent committee, but the subcommittee briefed the respondent committee on the findings presented at the afternoon meeting, in order to keep the entire committee informed as to the status of the environmental review and evaluation.  

 

28.  It is further found that a draft of the minutes for the August 9, 2006 regular meeting of the respondent committee, which were filed with the town clerk on August 15, 2006, stated that “the information on the environmental cleanup is subject to confidentiality according to their contract with DPW (Department of Public Works) and the Committee will be going into Executive Session...to discuss today’s informational briefing.”  

 

29.  It is further found that, prior to their adoption at the August 16, 2006 regular meeting of the respondent committee, the minutes for the August 9, 2006 meeting were amended to state that the August 9, 2006 executive session was “for the purpose of discussion of public records or information relating to the contents of real estate evaluations made by the Town of Preston relative to the acquisition of property….” However, only the mover and the person seconding the motion, but no vote, to convene an executive session were recorded in the minutes. The minutes did show which members of the respondent committee were and were not present.

 

30.  The respondents contend that the regular meeting executive session was permitted pursuant to §§1-200(6)(E) and 1-210(b)(7), G.S., because discussion of Earth Tech’s findings concerning environmental contamination would have resulted in the disclosure of information relating to the contents of real estate evaluations.

 

31.  However, based upon the findings and conclusions in paragraphs 20 through 23, above, it is concluded that the respondent committee’s regular meeting executive session was not permissible pursuant to the provisions of  §§1-200(6)(E) and 1-210(b)(7), G.S.

 

32.  It is concluded therefore that the respondent committee violated the open meeting provisions of §1-225(a), G.S., by convening an executive session for a purpose not authorized under §1-200(6), G.S.

 

33.  It is found that the individually named respondents were members of the respondent committee. As such, the respondents may have maintained on the date of the records request (August 10, 2006) maps and other records that identified areas of concern for contamination on the Norwich State Hospital property. These maps and other records would have been primarily records generated by the individuals evaluating environmental contamination of the property.  It is also found that no “other investigations” within the scope of the request existed.

 

34.  It is concluded that any requested records maintained by the respondents at the time of the request are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.  

 

35.  It is found that the respondents failed to prove that any of the requested records maintained by the respondents at the time of the request constituted the contents of “real estate appraisals” or “engineering or feasibility estimates and evaluations” made for an agency relative to the acquisition of property, within the meaning of §1-210(b)(7), G.S.

 

36.  It is therefore concluded that any records maintained by the respondents on the date of the records request were not exempt from disclosure pursuant to §1-210(b)(7), G.S.

 

37.  The respondents additionally claim that any such records were exempt from disclosure pursuant to the provisions of §1-210(b)(1), G.S. 

 

38.  Section 1-210(b)(1), G.S., permits the nondisclosure 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.” 

 

39.  It is found that the respondents failed to prove that any requested records maintained by the respondents on the date of the request constituted “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.; moreover, the respondents failed to prove that they had determined that the public interest in withholding such records clearly outweighed the public interest in disclosure, as required for the application of the §1-210(b)(1), G.S., exemption. 

 

40.  It is therefore concluded that any records maintained by the respondents on the date of the records request were not exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

41.  Accordingly, it is concluded that the requested records were not exempt from mandatory disclosure, and the respondents violated the requirements of §§1-210(a) and 1-212, G.S., when they failed to provide them to the complainant. 

           

42.  With respect to the complainant’s allegation concerning the respondent committee’s August 16, 2006 executive session, it is found that a regular meeting of the respondent committee was convened at 7:03 p.m. on Wednesday, August 16, 2006, and that an executive session was convened at this meeting “for the purpose of Bruce Chudwick and Scott Murphy of Shipman & Goodwin LLP, providing correspondence that regarded legal issues on the Development Agreement in the context of providing advice and interpretation under attorney client privilege.” The vote to convene an executive session was recorded in the minutes with the words: “So voted.” The minutes also showed which members of the respondent committee were and were not present.   

 

43.  It is further found that the respondents submitted four records for in camera inspection, and on the index to the in camera records claimed the exemption at §1-200(b)(10), G.S., for each record. Such records are hereby identified as IC-2006-414-1 through IC-2006-414-4.   

 

44.  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.

45.  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. . . .

46.  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.

47.  Based on the in camera inspection, it is found that the records IC-2006-414-1 through IC-2006-414-4 do contain emails to an attorney for the respondents and an email from an attorney for the respondents to the respondents, that the communications related to seeking legal advice from a professional legal advisor in his capacity as such, and that the communications were made in confidence by the client or their agent.  

 

48.  It is also found, based on the minutes referenced in paragraph 42 above, and the in camera inspection of IC-2006-414-1 through IC-2006-414-4, that the emails were discussed in the August 16, 2006 executive session of the respondent Hospital Advisory Committee.    

 

49.  It is concluded that the respondent committee convened an executive session in order to discuss the contents of records subject to the attorney-client privilege, within the meaning of §1-210(b)(10), G.S.  Because the discussion would have disclosed information contained in exempt records, the executive session at the August 16, 2006 meeting of the respondent committee was authorized by §1-200(6)(E), G.S.  It is also concluded that the reasons for such executive session were stated as defined in §1-200(6), G.S., as required by §1-225(f), G.S., and that contrary to the complainant’s contention, it is not necessary to specify a specific provision of any agreement in order to convene a lawful executive session pursuant to §§1-210(b)(10) and 1-200(6)(E), G.S.               

 

50.  However, by not specifically recording the votes of each member on the motion to convene an executive session, it is also concluded that the minutes technically violated the requirements of §§1-225(a) and (f), G.S. The violation is technical because the words: “So voted” imply a unanimous vote of the specified members present.       

 

51.  With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S. provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

52.  It is found under the facts and circumstances of this case, that the violations set forth herein were not without reasonable grounds.  Therefore, the imposition of civil penalties is not appropriate under the provisions of §1-206(b)(2), G.S.       

 

53.  The Commission in its discretion declines to order the respondents to attend formal training conducted by the Commission.

 

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

 

1.  Henceforth, the respondents shall not convene any emergency meeting in the absence of an emergency, and the minutes of any emergency meeting shall adequately set forth the nature of the emergency.

 

            2.  Henceforth, the respondents shall specifically record the votes of each member on any motion to convene an executive session.

 

            3. Henceforth, the respondents shall not convene in executive session, unless such executive session is explicitly authorized pursuant to the provisions of §1-200(6), G.S.

 

            4.  If the respondents have not already done so, they shall provide the complainant with any requested records maintained by them on the date of the request and shall henceforth strictly comply with the provisions of §§1-210(a) and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 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:

 

Robert Fromer

PO Box 71

Windsor, CT 06095

 

Michael Sinko, Chairman, Hospital Advisory

Committee, Town of Preston; Allyn Brown III,

Roy Beauregard, Kent Borner, Robert Congdon,

Sandy Ewing, Merrill Gerber, Gerald Grabarek,

Dan Kulesza, and Kristina Gregory, as members,

Hospital Advisory Committee, Town of Preston;

and Hospital Advisory Committee, Town of Preston

c/o Henry J. Zaccardi, Esq.

Shipman & Goodwin

One Constitution Plaza

Hartford, CT 06103-1919

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-414FD/paj/8/14/2007