FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 14, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter dated December 17, 2007, and filed with the Commission on December 18, 2007, the complainant alleged that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by improperly convening in executive session on November 28, 2007.  The complainant requested that the respondent board’s proceedings against the complainant in connection with Petition No. 2006-1201-008-009 be declared null and void, and that such proceedings be terminated.  The complainant also requested that the respondent board be required to attend an FOI workshop.  The complainant further requested that the Commission order disclosure of the communications conducted by the respondent board during the alleged improper executive session.

 

3.  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….

 

4.  Section 1-200(2), G.S., defines “meeting" as:

 

“…any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power….”

 

            5.  Section 1-200(6), G.S., defines “executive session” to include:

 

…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, because of his conduct as a member of such agency, 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 1-225(f), G.S., provides that “[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.”

 

7.  It is found that the respondents held a contested case hearing on November 28, 2007 and that such hearing is a meeting within the meaning of §1-200(2), G.S.  It is found that the complainant was the subject of such meeting held by the respondents.  It is also found that the chairman of the respondent board moved in open session, that the respondent board convene in executive session.  It is further found that the members of the respondent board then unanimously voted to enter executive session. 

 

8. At the hearing in this matter, Richard Colangelo, a public member of the respondent, testified, albeit without any supporting evidence in the transcript of the November 28, 2007 contested case hearing (Complainant’s Exhibit A), that he recalls reminding the respondent board that the executive session was for the purpose of obtaining legal advice from the respondent board’s attorney, as to whether the board could “execute a summary suspension proceeding” pertaining to the complainant.  It is found that the respondents did not state a reason for such executive session.  It is also found that no agenda item corresponding with and prepared in advance of the meeting described in paragraph 7, above, indicates the purpose of the November 28, 2007 executive session.

 

9.  It is found that no action was taken by the respondents during or after the November 28, 2007 executive session.

 

10.  The respondents contend that the November 28, 2007 executive session was nonetheless permitted by §52-146r, G.S., which, they argue, permits discussion in executive session of privileged attorney-client communications. 

 

11.  Section 52-146r, G.S., prohibits disclosure of confidential communications between a government attorney and public official or employee of a public agency and provides, in relevant part, that:

 

[i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.

 

      12.  However, §1-231(b), G.S., establishes that the oral receipt or discussion of attorney-client privileged oral communications does not constitute an independent basis for an executive session.  Section 1-231(b), G.S., states explicitly, that:

 

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.

 

            13.  It is concluded that the November 28, 2007 executive session was not permitted under §52-146r, G.S.

 

14.  The respondents also contend that during the executive session in question, the respondent board discussed a matter that was 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 respondents failed to prove the existence of written communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S., which were discussed during the November 28, 2007, executive session.

 

16.  It is therefore concluded that the discussion conducted during the November 28, 2007 executive session does not fall within the meaning of §1-210(b)(10), G.S.  It is further concluded that the executive session was not permitted under §1-200(6)(E), G.S.

 

17.  The respondents further contend that the purpose of the executive session was to discuss strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled.  However, it is found that the respondent failed to prove that it was a party to a pending claim or to pending litigation, within the meaning of §1-200(6)(B), G.S., or that strategy or negotiations with respect to such claim or litigation was discussed in the executive session.

 

18.  It is therefore, concluded that the oral communication conducted during the November 28, 2007 executive session does not fall within the meaning of §1-200(6)(B), G.S.

 

19.  It is also found that the respondent Board of Examiners of Psychologists did not state the reason for the November 28, 2007 executive session, within the meaning of §1-225(f), G.S., and therefore, violated such provision.

 

20.  It is concluded that the respondent Board of Examiners of Psychologists violated the provisions of §§1-225(a) and 1-225(f), G.S., as alleged in the complaint.

 

21.  Based upon the facts and circumstances of this case, and notwithstanding the conclusion in paragraph 20, above, the Commission declines to declare null and void, the proceedings described in paragraph 2, above.

 

            The order of the Hearing Officer’s Report is amended as follows:

           

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

 

1.  Forthwith, the respondent board shall prepare minutes of its November 28, 2007 meeting to include the purpose for the executive session, the identity of those persons who attended the executive session, and shall, to the extent possible, reconstruct and include in such minutes, the substance of the discussion in executive session.    Forthwith, the respondents shall provide a copy of the same to the complainant, free of charge.

 

2.  Henceforth, the respondent Board of Examiners of Psychologists shall strictly comply with the provisions of §§1-225(a) and 1-225(f), G.S.

 

3.  The Commission believes that the respondent Board of Examiners of Psychologists would benefit from a Freedom of Information Act workshop, and the Commission encourages such training.

 

4. The complaint with respect to all other respondents is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 11, 2008.

 

________________________________

S. Wilson

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:

 

Reuben T. Spitz

c/o Jeffrey J. Mirman, Esq.

Levy & Droney, P.C.

74 Batterson Park Road

P.O. Box 887

Farmington, CT 06034

           

Commissioner, State of Connecticut, Department of Public Health,

Board of Examiners of Psychologists; and State of Connecticut,

Department of Public Health, Board of Examiners of Psychologists

c/o Thomas J. Ring, Esq.

Assistant Attorney General

Office of the Attorney General

55 Elm Street

P.O. Box 120  

Hartford, CT 06141

 

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-682FD/sw/6/18/2008