FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Joyce Bloom, | |||
| Complainant | |||
| against | Docket #FIC 2007-212 | ||
|
Bogus Hill Tax District, |
|||
| Respondent | March 26, 2008 | ||
The above-captioned matter was heard as a contested case on July 5, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
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 filed April 9, 2007, and supplemented on April 11, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening an illegal executive session on March 10, 2007, and failing to send her the notice and agenda of that meeting; and by convening an illegal executive session on April 7, 2007, and failing to send her a notice and agenda of that meeting as well. The complainant also requested the imposition of a civil penalty against the respondent, alleging that the respondent was a “repeat offender” who “has escalated from disrespecting the need to make records public to holding discussions in private, again seriously disregarding [the] FOI [Act].”
3. Section 1-225(f), G.S., provides in relevant part:
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.
4. Section 1-231(b), G.S., provides:
An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200.
5. Section 1-200(6), G.S., provides in relevant part:
“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes … (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof … is a party until such litigation or claim has been finally adjudicated or otherwise settled … (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 1-227, G.S. provides in relevant part:
The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. ... Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for notice shall be filed within thirty days after January first of each year. Such public agency may establish a reasonable charge for sending such notice based on the estimated cost of providing such service.
7. Section 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.
8. It is found that the complainant made a January 1, 2007 written request to the respondent to be sent notices and agendas of any and all meetings of the Bogus Hill Tax District.
9. It is found that the Board of Directors of the Bogus Hill Tax District held regular meetings on March 10 and April 7, 2007.
10. It is found that the respondent did not send notices and agendas of the March 10 and April 7, 2007 meetings to the complainant because of a dispute between the respondent and the complainant as to the amount properly charged and owed for copies of unrelated public records. The respondent had sent the complainant an invoice for $83.00; the complainant had paid $63.00, contending that the remaining balance was not a legitimate charge.
11. It is concluded that the respondent violated §1-227, G.S., by failing to send the complainant the notices and agendas of the March 10 and April 7, 2007 meetings.
12. It is found that the respondent is the individual directly responsible for denying the complainant’s right to receive notices of the Board’s meetings pursuant to §1-227, G.S.
13. It is found that the respondent’s denial of that right based on an unrelated billing dispute did not constitute reasonable grounds for the denial.
14. The respondent offered no other grounds for his denial of the complainant’s right to receive notices of the March 10 and April 7, 2007 meetings.
15. In Docket #FIC 2006-080, Joyce Bloom v. Alan Deutscher, the Commission concluded that the same respondent violated the FOI Act by charging the same complainant $60.00 for four hours of “administrative expenses” in connection with provided requested records. However, the Commission concluded that the denial was not without reasonable grounds, in part based on the Commission’s finding that respondent had been president of the tax district for less than a year.
16. It is found that the respondent’s failure to send meeting notices on the grounds of a billing dispute in this case is uncomfortably close to his previous violation of the FOI Act for impermissible expenses, and reflects a continued willingness by the respondent to use economic pressure to restrict the rights of the public to obtain copies of public records.
17. For all of the reasons stated in paragraphs 10 through 16, above, it is concluded that the respondent violated §1-227, G.S., without reasonable grounds, by failing to send the complainant a notice or agenda of the March 10, 2007 meeting.
18. It is found that the agenda for that meeting described in item 6 a “legal issues report” consisting of “A. FOI Regulations – Re: Dr. Bloom,” “B. Margolis Beach Road – Homeowners Assoc. Discussion,” and “C. Road Encroachment Discussion.”
19. It is found that the respondent made a motion to convene in executive session at the March 10, 2007 meeting for the purpose of discussing ‘the legal issue report from Pat” and “because I received some stuff and I want to do that in private.” The vote by the Board of Directors to convene in executive session was unanimous.
20. It is concluded that the respondent, who made the motion, violated §1-225(f), G.S., by moving to convene in executive session without stating the reasons for such executive session, as defined in §1-200, G.S.
21. It is found, however, that the respondent’s failure to state the reasons, within the meaning of §1-200, G.S., for the executive session, appears to have been due to carelessness, not willfulness, and therefore was not without reasonable grounds.
22. It is found that the only purpose of the March 10, 2007 executive session was to discuss a letter from an attorney to the Board of Directors giving them an opinion as to whether the Bogus Hill Tax District was required to include within its maintenance and plowing program a certain 20-foot right of way along the road to the community beach. The letter, based largely on the comments of members of the Tax District at public meetings, and other public records and public facts, concludes that it was not the intent of the Tax District to maintain the right of way up to the community beach.
23. The respondent contends that the executive session was appropriate because he considered the letter to be in confidence and to be privileged, and thought it should be discussed in private with no disclosure to third parties.
24. The respondent essentially contends that the requested legal opinions are exempt from disclosure pursuant to §1-210(b)(10), G.S., which provides that disclosure is not required of “communications privileged by the attorney-client relationship,” and that therefore the executive session was permissible pursuant to §1-200(6)(E), G.S.
25. 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.
26. 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. . . .
27. 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.
28. Also, the burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 341; see also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.
29. It is found that the respondent failed to prove that the opinion was requested to be given in confidence. Indeed, the complainant contends in her post-hearing brief, although no testimony was given in this regard, that the opinion was requested by taxpayers at their 2006 annual meeting.
30. It is also found that the opinion nowhere states that it is being given in confidence, and contains no confidential facts, but merely summarizes public documents and comments. The letter is primarily a factual opinion, and contains virtually nothing in the way of legal analysis.
31. It is further found that the opinion was not kept in confidence by the respondent or the Board of Directors following the executive session, that its contents were discussed publicly at the Board of Directors April 7, 2007 meeting, and that it was soon disclosed to the public.
32. It is therefore concluded that the opinion letter is and was not privileged by the attorney-client relationship.
33. It is additionally concluded, based on paragraph 32 above, that the March 10, 2007 executive session to discuss the opinion letter was not permissible pursuant to §§1-225(f) and 1-200(6)(E), G.S.
34. It is concluded that the respondent violated §1-225(f), G.S., by moving to discuss the opinion letter in executive session.
35. It is found that the respondent was the individual who had initially received the letter and moved to discuss it in executive session.
36. It is therefore found that the respondent is the official directly responsible for the denial of the complainant’s right to have the discussion of the opinion letter in public.
37. It is found that the grounds asserted by the respondent for convening in executive session were that he considered the letter to be privileged and thought he should discuss it in private.
38. It is found that the respondent was not advised by the author of the opinion letter or any other attorney that the letter was privileged, and that the letter does not on its face indicate that it is privileged or confidential.
39. It is found that the underlying issue was not shown to be confidential, and that the advice was not given in confidence.
40. It is therefore found that the respondent had no factual basis for asserting that the advice was confidential, and that his reasons for claiming that the letter was privileged and confidential, and moving to discuss the letter in executive session, were not reasonable.
41. For all of the reasons stated in paragraphs 18 through 40, above, it is concluded that the respondent violated §1-225(f), G.S., without reasonable grounds.
42. It is found that the agenda for the April 7, 2007 meeting of the Board of Directors described in item 5 the same matters described in the March 20, 2007 agenda: a “legal issues report” consisting of “A. FOI Regulations – Re: Dr. Bloom,” “B. Margolis Beach Road – Homeowners Assoc. Discussion,” and “C. Road Encroachment Discussion.”
43. It is found that a member of the Board of Directors (not the respondent) moved to convene in executive session at the April 7, 2007 meeting “for the purposes of discussing a legal matter.” The motion passed unanimously.
44. The executive session lasted nine minutes, and at its conclusion, the Board voted in public to waive the $23.00 balance purportedly owed by the complainant for copies of records (the fee dispute referenced in paragraph 10, above).
45. The respondent contends that the April 7, 2007 executive session was proper because the subject of the discussion was “pending claims and litigation.” Specifically, the respondent contends that the pending litigation was a previous FOI Act complaint filed by the complainant, and that the Board of Director’s consideration of waiving the $23.00 disputed copying fee was consideration of legal relief or action.
46. Sections 1-200(8) and (9), G.S., define pending claims and litigation as follows:
(8) “Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency's consideration of action to enforce or implement legal relief or a legal right.
47. It is found that the FOI complaint filed by the complainant against the respondent, Docket #FIC 2006-080, cited above, was not pending on April 7, 2007.
48. It is also concluded that the Board’s consideration of whether to waive the $20.00 it believed was owed by the complainant was not consideration of action to enforce or implement legal relief or a legal right within the meaning of §1-200(9), G.S.
49. It is also found that the respondent failed to prove that the Board’s discussion related to strategy or negotiation within the meaning of §1-200(6)(B), G.S.
50. It is therefore concluded that the respondent failed to prove that the April 7, 2007 executive session was to discuss strategy or negotiation with respect to pending claims or litigation.
51. It is also concluded, however, that the respondent was not the official directly responsible for the Board of Directors’ decision to convene in executive session for an improper purpose. The Commission also declines to conclude that the Bogus Hill Tax District Board of Directors violated the provisions of §1-225, G.S., by convening in executive session for an improper purpose, because the Board as a whole is not a party to this complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith remit to the Commission a civil penalty in the amount of $100.00.
2. Henceforth the respondent shall strictly comply with the requirements of §§1-225(f) and 1-227, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 26, 2008.
________________________________
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:
Joyce Bloom
17 Bogus Hill Road
New Fairfield, CT 06812
Alan Deutscher, President,
Bogus Hill Tax District
c/o Ted D. Backer, Esq.
Pinney Payne, PC
Lee Farm Corporate Park
83 Wooster Heights
Danbury, CT 06810
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2007-212FD/paj/3/27/2008