FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 8, 2009, at which time the complainants 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.         It is found that by letter dated December 1, 2008 and filed December 2, 2008, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by improperly convening in executive session on November 12, 2008.  Specifically, the complainants alleged that the respondent:

 

a.        failed to state the purpose of the executive session;

 

b.        convened in executive session for an improper purpose; and

 

c.        failed to limit attendance at the executive session to such persons whose presence was necessary to present testimony or opinion. 

 

The complainants requested the imposition of a civil penalty.

 

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(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, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; … and  (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.

 

5.         According to §1-200(8), G.S., “ ‘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.”

 

6.         According to §1-200(9), G.S., “ ‘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.”

 

7.         Section 1-225(f), G.S., provides: “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.”

       

8.         It is found that at the beginning of its November 12, 2008 regular meeting, the respondent voted unanimously to hold an executive session concerning the complainants’ pending zoning matter.  It is found that the commission failed to state a reason for convening in executive session until asked by a member of the public.  It is found that the chair of the zoning commission stated that the executive session was to discuss potential litigation concerning the complainants’ zoning matter.

 

9.         It is found that there was neither a pending claim nor pending litigation concerning the complainants’ zoning matter at the time of the executive session on November 12, 2008.  The respondent conceded that the chair of the zoning commission erred in describing the purpose of the executive session.

 

10.     It is concluded, therefore, that the respondent violated §1-225, G.S., first by failing to state the reason for the executive session until asked by a member of the public, and then by failing to accurately describe the reason for the executive session.

 

11.     At the hearing in the matter, the respondent claimed that the true reason for the executive session was to discuss a written memorandum on the legal issues concerning the complainants’ zoning matter.

 

12.     It is found that in the executive session, the respondent discussed only a legal memorandum drafted by respondent’s counsel. The respondent submitted a copy of such legal memorandum to the Commission for in-camera inspection.  Such document is hereby identified as IC-2008-762-1 through IC-2008-762-5, entitled on the in camera index as “Oct. 14, 2008 Halloran & Sage Draft Legal Memorandum.”  The respondent claimed the document is a public record exempt from disclosure pursuant to §1-210(b)(10), G.S.

 

13.     Section 1-200(5), G.S, defines “public records” to mean “…any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency…”.

 

14.     It is found that IC-2008-762-1 through IC-2008-762-5 are public records within the meaning of §1-200(5), G.S.

 

15.     In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”

 

16.     Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such 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.

 

17.     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. . . .”

(Emphasis added.)

 

18.     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.

 

19.     It is found that IC-2008-762-1 through IC-2008-762-5 consist of written communication transmitted in confidence between the respondent and a government attorney relating to legal advice sought by the respondent, within the meaning of §52-146r(2), G.S.

 

20.     It is concluded that in camera records IC-2008-762-1 through IC-2008-762-5 constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.

 

21.     The complainants contend that §1-231(b), G.S., prohibited discussion of the legal memorandum in executive session. 

 

22.     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.

 

23.     By its terms, however, §1-231(b), G.S., applies only to “oral communications.”  It is found that the respondent’s November 12, 2008 executive session was convened to receive and discuss written communications.

 

24.     It is concluded, therefore, that IC-2008-762-1 through IC-2008-762-5 were permissively exempt from disclosure pursuant to §1-210(b)(10), G.S., at the time of the November 12, 2008 executive session, and that the respondent did not violate §1-225(a), G.S., by entering such session to discuss such records.

 

25.     With respect to the allegation described in paragraph 2.c, above, that attendance at the executive session was not limited to those persons whose testimony or opinion was necessary, §1-231(a), G.S., provides:

 

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

26.     It is found that all of the commissioners, two commission attorneys, the Zoning Enforcement Officer, and the First Selectman attended the executive session. 

 

27.     It is found that the Zoning Enforcement Officer attended because the decision whether to issue the permit requested by the complainants is vested exclusively with that office. (Zoning regulations provide that the respondent shall be consulted if a zoning permit application involves a change of use, as did the complainants’ application.) It is found that the First Selectman, who is an ex officio member of the respondent, attended because of the financial issues implicated by the legal memorandum.  It is found that commission counsel attended to present their legal memorandum.  It is also found that none of the persons in attendance were job applicants being interviewed by the respondent.

 

28.     It is found that attendance was appropriately limited pursuant to §1-231(a), G.S.

 

29.     It is found, however, that the minutes of such executive session fail to disclose all persons in attendance. 

 

30.     It is concluded, therefore, that the respondent violated §1-231(a), G.S., by failing to disclose all persons in attendance at the November 12, 2008 executive session.

 

31.     The Commission declines to consider the complainants’ request for the imposition of a civil penalty against the respondent.

 

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 amend the minutes of its regular meeting of November 12, 2008 to state the reason for convening in executive session and to disclose all persons who were in attendance.

 

2.     The respondent shall henceforth strictly comply with §§1-225 and 1-231, G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 26, 2009.

 

____________________________

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:

 

Woodbury Donuts LLC and Eyre LLC

C/o Franklin G. Pilicy, Esq.

365 Main Street

Watertown, CT 06795

 

Zoning Commission, Town of Woodbury

C/o Kenneth R. Slater, Jr., Esq.

Halloran & Sage LLP

225 Asylum Street

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-762FD/sw/8/31/2009