FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 2, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC 2007-227, Clare D’Appollonio and the Scotland Board of Education v. Board of Education, Regional School District 11.

 

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)(A), G.S.

 

2.      By letter dated March 28, 2007 and filed April 2, 2007, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

      a.   failing to demonstrate that the discussion conducted during the March 27, 2007 executive session was permissible within the meaning of §1-200(6)(E), G.S.; and

 

b.      voting in executive session on March 27, 2007.

 

3.      It is found that the respondent held a special meeting on March 27, 2007.

 

4.      It is found that the meeting was noticed properly under the FOI Act.

 

5.      It is found that the agenda for the meeting stated the respondent’s intent to convene in executive session “under attorney/client privilege per advice of legal counsel” to consider the following agenda items:

 

a.       “Vo-Ag [vocational-agricultural program]

 

b.      Scotland Request to Educate Grade 7 and 8 Students Locally

 

c.       Process for Election of Regional Board Members.”

 

6.      It is found that, before convening in executive session during the March 27, 2007 special meeting, the chair of the respondent announced that the respondent was going into executive session for 15 minutes to read town counsel’s legal opinion.

 

7.      It is found that the respondent returned from the executive session approximately one hour later.

 

8.      It is found that when the respondent returned from the executive session, its chairwoman announced that the respondent would take no formal action with regard to the agenda items referred to in paragraph 5, above, based on the written opinion of counsel.

 

9.      It is found that when the respondent returned from the executive session, its chairwoman announced also that she would seek further legal advice as to the agenda item referred to in paragraph 5.b, above, based on the written opinion of counsel, and would propose a response at the April 10, 2007 meeting of the respondent.

 

10.    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.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection….

 

11.    Section 1-200(6), G.S., defines “executive session” as:

 

…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.   Section 1-200(5) G.S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

13.   It is found that the written legal opinion discussed by the respondent in its executive session of March 27, 2007 is a public record within the meaning of §1-200(5), G.S.

 

14.   Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records 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.  That 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.

 

 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 the chair of the respondent requested confidential legal advice from the respondent’s attorney concerning the matters described in paragraph 5, above. It is further found that the respondent’s attorney transmitted his legal opinion in an e-mail to the chair of the respondent in confidence.  It is found that the chair disclosed the e-mail to no one prior to the March 27, 2007 executive session of the respondent, and that the e-mail was disclosed only to the members of the respondent during the executive session of March 27, 2007.  It is found that the respondent maintains the confidentiality of the attorney’s legal advice and written legal opinion.

 

19.   It is found that the written legal opinion was solicited by the chair of the respondent, in the course of her duties, and related to items under consideration by the respondent.

 

20.   It is found that the written legal opinion is a communication related to legal advice sought from a professional legal advisor in his capacity as such, and that the communication was made in confidence.

 

21.   It is found, therefore, that the written legal opinion constituted a record of communication privileged by the attorney-client relationship. It is found that the respondent did not waive the privilege.

 

22.   It is found that the FOI Act exempts such record from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.

 

23.   It is concluded that the respondent did not violate the FOI Act by convening in executive discussion to discuss such record, pursuant to the provisions of §§1-200(6)(E) and 1-210(b)(10), G.S.

 

24.   The complainant contends that because the respondent’s executive session lasted four times longer than announced before the session began, the respondent’s closed discussion must have ventured beyond its limited purpose of discussing written legal advice.

 

25.    It is found that, although the length of the executive session was much longer than anticipated, members of the respondent restricted their discussion to the attorney’s written opinion.

 

26.   It is found that the respondent did not exceed the scope of permissible discussion in executive session.

 

27.   Accordingly, it is concluded that the respondent did not violate the FOI Act with respect to the allegation described in paragraph 2.a, above.

 

28.  With respect to the allegation, described in paragraph 2.b, above, that the respondent voted in executive session, it is found that no polling of members occurred and no decisions were made in the executive session.

 

29.  It is found that the chair of the respondent, after considering the written legal advice of the respondent’s attorney and the discussion among members of the respondent, formed the opinion that no formal action by the respondent on the matters described in paragraph 5, above, was appropriate at that time.  Specifically, it is found that the chair took no action with respect to the agenda items described in paragraph 5.a and c, above. It is found that the chair postponed action with respect to the agenda item described in paragraph 5.b, above. 

 

30.  It is found that the respondent did not vote, by poll or by consensus, on any of the agenda items discussed in the March 27, 2007 executive session.  It is further found that the announcements described in paragraphs 8 and 9, above, were made unilaterally by the chair and were based solely on her decisions.

 

31.   Accordingly, it is concluded that the respondent did not violate the FOI Act with respect to the allegation described in paragraph 2.b, above.

 

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 September 26, 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:

 

Gay Wagner

150 North Bigelow Road

Hampton, CT 06247

 

Board of Education,

Regional School District 11

c/o Robert J. Murphy, Esq.

Sullivan, Schoen, Campane & Connon

646 Prospect Avenue

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-199FD/paj/10/1/2007