In the Matter of a Request
    for Advisory Opinion





)     Advisory Opinion   #19



Richard F. Lawler as President of the Board of Police Commissioners of the City of New Haven, Applicant

)     June 15, 1976








The Commission has agreed to comply with the following request for an advisory opinion from the president of the Board of Police Commissioners of the City of New Haven:


"If 'notes' are taken of what transpires during a valid executive session of a Board or Commission and such 'notes' are then printed up and perhaps even passed on or approved by the Board as 'minutes' of the discussion which took place, can such 'minutes' be segregated from that portion of the minutes of the executive session which is required to be made available to the public and which would include such things as all votes taken? For example, may a Board have minutes kept of what actually transpires during a discussion of personnel matters and yet have the public minutes only reflect the fact that there was a, 'discussion of personnel matters'?"


This inquiry is answered in the negative for the reasons that follow.


The Freedom of Information Act provides for the executive session as an exception to the public's right of access to meetings of a public agency. P.A. 75-342 expressly requires the votes of each member of the pubic agency upon any issue before the public agency to be reduced to writing and made available for public inspection within forty-eight hours. It also requires that the votes of each member shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection at all reasonable times (6, amending 1-21, G.S.).


The "notes" referred to in this request for an opinion are, in fact, minutes of an executive session and, as such, the "notes" or "minutes" are part of the public records of the Board.


There is no definition of minutes specified in P.A. 75-342. However, the context of 6 clearly indicates the legislature's intention to employ this term to refer to the official record made of proceedings at a meeting, in accordance with the dictionary meaning and common usage (1-1, G.S.).


Despite the provision of a series of exceptions to the public access to public records in 2(b) of P.A. 75-342, no exception in this statute operates to exclude from access all or any part of the minutes of a meeting, regardless of subject matter.


Construing 2(b) together with l(e) of P.A. 75-342, we find that Subsections (1), (4), and (5) of 1(e) expressly limit the executive session to "discussion" of the subjects described therein. Subsections (2) and (3), however, do not impose such a limit and assume both discussion and action in camera. The text of Subsection (2) provides for the exclusion of the public for the purpose of strategy and negotiations with respect to pending claims and litigation. This is an area in which the public agency would need to act affirmatively in executive session under circumstances in which the adversary interests of the public as represented by the public agency would be deleteriously affected by access. Similarly, Subsection (3) excludes the public from access for the purpose of matters concerning security strategy or the deployment of security personnel or devices affecting public security. In this latter instance public security is at stake; and the public interest demands that the public agency both act and discuss the measures to be taken.


From all of the above, it is concluded as to the inquiry of the Board of Police Commissioners that its executive session under 1(e)(1) of P.A. 75-342 must be limited to what the request for advisory opinion called "personnel matters." Under 1(e)(l) the legislature assumes that no action will be taken during the executive session for the reasons above indicated.


Sec. 6 of P.A. 75-342 does not require the keeping of minutes that describe the executive session discussions. The minutes of the executive session itself need not set forth any more than the formal details of its convening, the persons present, and a report that discussion occurred on the matters described in the motion to convene in executive session. The keeping of "notes" or "minutes" that describe the contents of the discussion in executive session is a course of action chosen by the Board of Police Commissioners. In the event that the Board elects to incorporate in its minutes of the executive session information to which the public would not otherwise be entitled to access under l(e), the Commission could construe this to be a voluntary disclosure under 3(l) and, other circumstances being equal, would entertain a complainant's request that the entire record of the minutes be treated as a public record and access ordered under 2(a).


In the context of this request for an advisory opinion, all of the foregoing means that the Board of Police Commissioners cannot keep two minute books, one for public access and one for agency secrets. This is no more tolerable under P.A. 75-342 than

would be the keeping of two sets of financial records to hide secret transactions of a business. If any "notes" or "minutes" of any meeting are kept executive session or any other such minutes are part of the public records of the agency and are available to the public under authority of 2(a) of P.A. 75-342.






                                                                                            By Order of the Freedom of
                                                                                            Information Commission


                                                                                            Herbert Brucker, Chairman of
                                                                                            of the Freedom of Information

Date ____June 21, 1976_____



Louis J. Tapogna, Clerk