FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Request
 for Advisory Opinion


 

     Advisory Opinion   #65

Town Manager, Town of Avon, Applicant

    

 

 

 

On May 23, 1984, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Town Manager, Town of Avon. With the consent of the applicant, this matter was held pending an expected decision by the Connecticut Supreme Court on issues pertinent to this request. When the Supreme Court failed to address those issues, the matter again was held pending passage of clarifying legislation. That legislation has since been enacted.

 

The applicant seeks the commission's opinion questions as applied to six complex situations. The questions are:

 

A. Is the executive session described permissible under Conn. Gen. Stat. 1‑18a(e)?

 

B. If the executive session described is not permissible under Conn. Gen. Stat. 1‑18a(e) is it nevertheless a properly convened closed meeting because it is intended to preserve the confidentiality of attorney‑client communications?

 

Conn. Gen. Stat. 1‑21(a) states clearly and unambiguously that "[t]he meetings of all public agencies, except executive sessions as defined in ... [Conn. Gen. Stat.
1-18a(e)], shall be open to the public." Accordingly no portion of a meeting within the meaning of the Freedom of Information (hereinafter "FOI") Act may be closed to the public unless for a purpose permitted for executive session under 1-18a(e). In this regard, see also the discussion of Conn. Gen. Stat. 1-21g, as amended by P.A. 86-226, below. Therefore it is the Commission's opinion that question B must be answered in the negative in all the situations presented in the applicant's request.

 

The commission's opinion in answer to question A, however, turns on individual analysis and differs with each situation presented. Consequently each one will be treated separately.

 

1. The first situation presented is as follows

 

"The town has become aware of a lawsuit involving private parties, but also involving an issue of substantial public importance to the Town. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary. The Town Council wishes to consider whether the Town should seek to become a party to the pending litigation and for that purpose desires to seek and to receive the advice of the Town Attorney with respect to the rights and liabilities associated with, as well as the alternatives to, intervention in the pending action. Upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing strategy with respect to seeking intervenor status in the pending lawsuit. At the request of the Town Council, the Town Attorney is present during the executive session for the purpose of giving legal advice with respect to such strategy to the council. No matters except strategy with respect to intervention in the pending lawsuit are discussed during the executive session."

 

Conn. Gen. Stat. SI‑21g(b), as amended by P.A. 86‑226, 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 ... [Conn. Gen Stat. 1‑18a(e)]."

 

This subsection, as well as its legislative history, makes clear that an agency may not close its meetings to the public to consult with its attorney unless the consultation relates to a purpose specifically permitted under Conn. Gen. Stat. 1‑18a(e). In these circumstances it is the Commission's opinion that the only conceivably applicable purpose is that found in 1‑18a(e)(2) for executive session

 

"strategy and negotiations with respect to pending claims and 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 .... "

 

The FOI Act embodies a broad and strong legislative policy in favor of the open conduct of government. Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 550 (1980); FOI Commission Advisory Opinion #58. In effect, this is a corollary to a fundamental rule of statutory construction that when a statute creates an exception to a general rule (in this instance, the general rule is open meetings), the exception is to be strictly construed and its language is not to be extended beyond its evident intent. Willoughby v. New Haven, 123 Conn. 446, 454 (1937); FOI Commission Advisory Opinion #58. Thus, the commission is obliged to interpret strictly and narrowly the 1‑18a(e) purposes for executive or closed sessions.

 

 

 

 

Under the facts as presented, neither the town nor any of its agencies is a party to the pending lawsuit. As a result, by its very terms 1-18a(e)(2) does not apply. Thus it is the commission's opinion that the executive session described is not permissible and question A must be answered in the negative.

 

2. The second situation presented is as follows:

 

"The town has become aware of a lawsuit involving private parties, but also involving an issue of substantial public importance to the Town. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary to the decision making process. The Town Council wishes to consider whether the Town should seek to become a party to the pending litigation and for that purpose requests and receives the confidential written opinion of the Town Attorney with respect to the rights and liabilities associated with, as well as the alternatives to, intervention in the pending action. For purposes of these rulings, please assume that the opinion is a communication privileged by the attorney-client relationship. Thereafter, upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing the Town Attorney's opinion. At the request of the Town Council, the Town Attorney is present during the executive session to discuss his written opinion with the Council. No matters except the issues reflected in the opinion are discussed during the executive session."

 

Much of the analysis set forth in section 1, above, also applies here. However, Conn. Gen. Stat. 1‑18a(e)(5) sets forth as a permissible purpose for executive session "discussion of any matter which would result in the disclosure of public records or the information contained therein described in ... [Conn. Gen. Stat. 1‑19(b)]." 1‑19(b)(10), in turn, exempts from public disclosure "communications privileged by the attorney‑client relationship.... "

 

Under Connecticut's common law definition of the attorney‑client privilege (see Rienzo v. Santangelo, 160 Conn. 391, 195 (1971)), the Commission cannot determine in this context whether the privilege applies to the facts presented. But if the town attorney's written opinion privileged by the attorney‑client relationship it is the Commission's opinion that the executive session permissible under 1‑18a(e)(5) by operation of 1‑19(b)(10).

 

In these circumstances then question A must be answered in affirmative.

 

3. The third situation presented is as follows:

 

"A subdivision project has resulted in siltation and pollution of a watercourse within the Town. The appropriate officials of the Town have attempted informally to resolve the problem with the developer, but to no avail. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary to the decision making process. The Town Council therefore wishes to have the advice of the Town Attorney with respect to the various options and strategies available to the Town in its efforts to abate the siltation and pollution. Upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing strategies for abating the siltation and pollution. At the request of the Town Council, the Town Attorney is present during the executive session for the purpose of giving legal advice with respect to such strategies. No matters except strategies with respect to the Town's efforts to abate the siltation and pollution in the watercourse are discussed during the executive session."

 

Again much of the analysis set forth in section 1, above, applies here. In this situation neither the town nor any of its agencies appears to be a party to a pending claim or lawsuit. Thus it is the Commission's opinion that the executive session described is not permissible and question A must be answered in the negative.

 

4. The fourth situation presented is as follows:

 

"A subdivision project has resulted in siltation and pollution of a watercourse within the Town. The appropriate officials of the Town have attempted informally to resolve the problem with the developer, but to no avail. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary to the decision making process. The Town Council therefore requests and receives confidential written opinion of the Town Attorney with respect to the various strategies available to the Town in its efforts to abate the siltation and pollution. For purposes of these rulings, please assume that the opinion is a communication protected by the attorney‑client relationship. Thereafter, upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing the Town Attorney's opinion. At the request of the Town Council, the Town Attorney is present during the executive session for the purpose of discussing his opinion with the Council. No matters except the issues reflected in the opinion are discussed during the executive session.

 

The analysis set forth in section 2, above, applies with equal force here. Assuming that the town attorney's written opinion is privileged by the attorney‑client relationship, it is the commission's opinion that the executive session is permissible under 1‑18a(e)(5) by operation of 1‑19(b)(10). In these circumstances then question A must be answered in the affirmative.

 

5. The fifth situation presented is as follows:

 

"The Town has received a notice pursuant to Section 7‑465 of the Connecticut General Statutes from an attorney representing an individual who was recently arrested by a member of the Town police department. The individual claims that the arrest was improper and seeks compensation for alleged violation of constitutional rights. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary to the decision making process. The Town Council wishes to obtain the advice of the Town Attorney with respect to its liability on the claim and with respect to the Town's response to the demand. Upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing strategy with respect to the claim. At the request of the Town council, the Town Attorney is present during the executive session for the purpose of giving legal advice with respect to the Town's liability on the claim and the strategy which the Town should pursue in responding to the claim. No matters except strategy with respect to the claim are discussed in the executive session."

 

Much of the analysis set forth in section 1, above, also applies here. In these particular circumstances though the Commission must determine whether the filing of a notice of intention to sue under Conn. Gen. Stat. 7‑465 initiates a pending claim within the meaning of Conn. Gen Stat 1‑18a(e)(2).

 

In material part, 7-465 provides:

 

" [n]o action for personal physical injuries or damages to real or personal property shall be maintained against ... [a] municipality and [its] employee jointly ... unless written notice of the intention to commence such action . . . has been filed with the clerk of such municipality within six months after such cause of action has accrued."

 

 

It is the Commission's opinion that the filing of a notice pursuant to 7‑465 initiates a pending claim for purposes of Conn. Gen. Stat. 1‑18a(e)(2) and 1-19(b)(4). Anything to the contrary stated or implied in the Commission's decision in docket #FIC76-71, or in any of its other decisions, is hereby repudiated. Therefore under the facts as presented, the Commission believes that the town is a party to a pending claim. As a result 1-18a(e)(2) applies specifically. Consequently it is the Commission's opinion that the executive session described is permissible and question A must be answered in the affirmative.

 

6. The sixth situation presented is as follows:

 

"The Town has received a notice pursuant to Section 7‑465 of the Connecticut General Statutes from an attorney representing an individual who has recently been arrested by a member of the Town police department. The individual claims that the arrest was improper and seeks compensation for alleged violation of constitutional rights. The factual and legal issues are sufficiently complex that the advice of an attorney is necessary to the decision making process. The Town Council seeks and receives the confidential written opinion of the Town Attorney with respect to its liability on the claim and with respect to the Town's response to the demand. For purposes of these rulings, please assume that the opinion is a communication privileged by the attorney‑client relationship. Thereafter, upon motion duly made, the Town Council votes to go into executive session for the purpose of discussing the Town Attorney's opinion. At the request of the Town Council, the Town Attorney is present during the executive session for the purpose of discussing his opinion with the Council. No matters except the issues reflected in the opinion are discussed in the executive session."

 

The analysis set forth in section 2, above, applies with equal force here. Assuming that the town attorney's written opinion is privileged by the attorney‑client relationship, it is the Commission's opinion that the executive session is permissible under 1‑18a(e)(5) by operation of 1‑19(b)(10). In these circumstances then question A must be answered in the affirmative.

 

 

 

                                                                                            By Order of the Freedom of
                                                                                            Information Commission

                                                                                           

                                                                                ________________________
                                                                                            Curtis Cofield, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

 

Ordered_________________

Karen J. Haggett,
Clerk of the Commission