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 complainants 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 2007-199, Gay Wagner 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 April 11, 2007 and filed April 16, 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.;

 

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

 

      c.   holding a secret and unnoticed meeting.

 

3.      It is found that by letter dated February 7, 2007 and delivered to the chair of the respondent on February 8, 2007, the complainant D’Appollonio, who at all relevant times served as chair of the complainant board, requested, on the board’s behalf, that the respondent permit the education of Scotland’s 7^th and 8^th grade students to occur at the Scotland elementary school, at the expense of the Scotland Board of Education. The complainants’ request required the permission of the respondent.

 

4.      It is found that the respondent referred the complainants’ request to legal counsel.

 

5.      It is found that the complainants’ request appeared on the agenda for the respondent’s special meeting of March 27, 2007. The agenda also indicated the respondent’s intent to convene in executive session “under attorney/client privilege per advice of legal counsel” to consider the complainants’ request.

 

6.      It is found that the respondent convened in executive session during its March 27, 2007 special meeting, in order to consider the written advice of town counsel concerning the complainants’ request.

 

7.      It is found that when the respondent returned from the executive session, its chair announced that, based on the written opinion of counsel, she would seek further legal advice on the complainants’ request and would propose a response at the April 10, 2007 special meeting. The chair also announced that the respondent would act on the complainants’ request at its April 10, 2007 meeting.

 

8.      It is found that the agenda of the respondent’s April 10, 2007 special meeting listed the complainants’ request concerning the education of the town’s 7^th and 8^th grade students.

 

9.      It is found that, at the April 10, 2007 special meeting, the chair of the respondent presented to the other members of the respondent a draft letter addressed to the complainants, dated April 10, 2007, denying their request.

 

10.    It is found that after discussion in open session, the respondent voted to deny the complainants’ request and to adopt the draft letter as a final version, which the chair was instructed to send to the complainants.

 

11.    It is found that the letter, dated April 10, 2007, was sent to the complainants and received by complainant D’Appollonio on April 14, 2007.

 

12.    The complainants contend that since no public discussion on the substance of their request and no public vote of decision occurred prior to the respondent’s composition of the April 10, 2007 letter, the respondent acted in violation of the open meeting mandates of the FOI Act. “Without benefit of any public debate … the [respondent] had somewhere, somehow already decided the issue,” the complainants allege.

 

13.    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….

 

14.   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.

 

15.   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.

 

16.   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.

 

17.   Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of  “communications privileged by the attorney-client relationship.”

 

18.   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.

 

 19.  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. . . .

 

20.  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.

 

21.   It is found that the chair of the respondent requested confidential legal advice from the respondent’s attorney concerning the complainants’ request, described in paragraph 3, 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 testified credibly that she 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.

 

22.   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.

 

23.   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.

 

24.   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.

 

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

 

26.   It is found that at the hearing in this matter, the members of the respondent restricted their discussion in executive session to the attorney’s written opinion.

 

27.   It is found that the respondent’s discussion during its March 27, 2007 executive session was permissible, pursuant to §§1-200(6)(E) and 1-210(b)(10), G.S., of the FOI Act.

 

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

 

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

 

30.   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 complainants’ request was appropriate at that time.  It is further found that after the March 27, 2007 meeting, the chair of the respondent contacted the respondent’s counsel for additional legal advice.

 

31.   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 paragraph 7, above, were made unilaterally by the chair and were based solely on her decisions.

 

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

 

33.  With respect to the allegation, described in paragraph 2.c, above, that the respondent held a secret and unnoticed meeting prior to April 10, 2007 to decide how to respond to the complainants’ request, it is found that the respondent took no public comment on the complainants’ request at either its February 13, 2007 or March 27, 2007 special meetings.

 

34.    It is found, however, that the respondent discussed the issue in public at its April 10, 2007 meeting. It is found, moreover, that following such public discussion, the respondent voted to adopt the draft letter of denial and send it to the complainants.

 

35.    It is found that the FOI Act does not require a public agency to take public comment before deciding an issue.

 

36.    It is found that no discussion or decision on the issue by the respondent or any of its members occurred prior to the April 10, 2007 special meeting.  It is found that the respondent’s attorney drafted the proposed letter of denial that the chair presented to the respondent at the April 10, 2007 meeting.

 

37.   Accordingly, it is concluded that the respondent did not hold a secret or unnoticed meeting concerning the issue of where to educate Scotland’s 7^th and 8^th grade students. It is concluded, therefore, that the respondent did not violate the FOI Act with respect to the allegation described in paragraph 2.c, 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:

 

Clare D’Appollonio and the

Scotland Board of Education

PO Box 288

Scotland, CT 06264

 

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/2007-227FD/paj/10/1/2007