FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Request
for Advisory Opinion


     Draft #3

 

     Advisory Opinion   #77

Majority Leader, Connecticut House of Representatives, Applicant

    

 

 

 

On November 30, 1988, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Majority Leader of the Connecticut House of Representatives.

 

In his request, the applicant notes that the State Judicial Selection Commission ("JSC") was established and empowered pursuant to constitutional amendment and state statute. The chief mandate of the JSC is to provide a list of qualified candidates from which the Governor shall select nominees for judgeships.

 

The applicant seeks the Commission's opinion as to the applicability of the Freedom of Information ("F01") Act with respect to the JSC. Specifically, the applicant would like the Commission's opinion as to whether the JSC must comply with the FOI Act's requirements governing notice of meetings, minutes (including those portions about executive sessions) and votes.

 

The basic concept behind the FOI Act is that the records and meetings of public agencies are to be open to the public except where federal law or state statute provides to the contrary. See Conn. Gen. Stat. 1-19(a) and 1-21(a). Without doubt, the JSC is a public agency within the meaning of Conn. Gen. Stat. 1-18a(a). The question remains then as to the extent federal law or state statute exempts the JSC from the requirements of the FOI Act.

 

The Commission is unaware of any federal law controlling the JSC's records or meetings. The primary state statute governing the JSC is Conn. Gen. Stat. 51-44a, as amended by P.A. 89-238. That statute contains a number of provisions affecting the applicability of the FOI Act to the JSC. They are:

 

1. The JSC shall hold a hearing before recommending a judge's reappointment if a preliminary examination indicates further inquiry is necessary. The JSC shall make a record of each such hearing. The hearing may be open to the public at the request of the judge. The notice of the JSC's decision not to reappoint a judge shall include a record of the numerical vote on the issue. Conn. Gen. Stat. 51-44a(e).

 

2. Although the vote of the JSC on an incumbent judge may be by secret ballot, the vote on a new nominee must not be by secret ballot. Conn. Gen. Stat. 51-44a(i).

 

3. Except as provided in Conn. Gen. Stat. 51-44a(e) and (m), "the investigations, deliberations, files and records" of the JSC shall be confidential. The criteria by which new and incumbent judges are evaluated and the JSC's procedural rules, however, shall be public. Conn. Gen. Stat. 51-44a(j).

 

4. The JSC's chairperson shall annually report certain non-personally identifiable information to the General Assembly's Judiciary Committee. Conn. Gen. Stat. 51-44a(m). Since this information constitutes an exception to the matters to be kept confidential under 51-44a(j), presumably it is also available to the public.

 

In addition, Conn. Gen. Stat. 2-40a, as amended by P.A. 89-238, provides that any performance evaluation of a judge made by the Judicial Department and made available to the JSC shall be used only for the purpose for which it was given and shall not be disclosed to anyone else.

 

The Commission believes that the statutory scheme described above can be fairly characterized as embodying the legislature's will in two, somewhat differing, respects as to the

applicability of the FOI Act to the JSC. First, the legislature clearly manifested its intent to confer a broad grant of confidentiality over personally identifiable information in those matters falling within the JSC's mandate to evaluate and recommend judge candidates. Second, the legislature did not categorically exempt the JSC from all of the requirements of the FOI Act. Consequently, to respond to the applicant's specific inquiry, the Commission believes it must balance the FOI Act's "overarching policy favoring disclosure," Hartford v. FOI Commission, 201 Conn. 421, 431 (1986), with the legislature's broad grant of confidentiality to the JSC.

 

It is the Commission's opinion that the JSC must comply with the notice of meetings requirements of the FOI Act except to the extent that such compliance would disclose, or reasonably lead to the disclosure of, matters which are confidential under 51-44a(j). The Commission foresees three categories of meetings, distinguished by subject matter and attendance, to which this general requirement applies:

 

1. Meetings concerning confidential investigations deliberations, files or records, which meetings are to be attended only by JSC members, staff or counsel. It is the Commission's opinion that the JSC will not violate the prohibitions against disclosure in 51-44a(j) merely by filing a schedule of regular meetings at which attendance is to be limited to JSC members, staff or counsel. Nor will the JSC violate those prohibitions by filing notices of special meetings at which attendance is to be so limited, denoting the time, date, place and a general, non-personally identifiable statement of the business to be transacted.

 

2. Meetings concerning confidential investigations, deliberations, files or records, which meetings are to be attended by individuals (other than JSC members, staff or counsel) whose presence might disclose, or reasonably lead to the disclosure of, matters which are confidential under 51-44a(j). It is the Commission's opinion that because filing a schedule of a regular meeting at which such individuals are to be present, or filing a notice of a special meeting at which such individuals are to be present may violate the prohibition against disclosure in 51-44a(j), the JSC need not file such a schedule or notice. Such a schedule or notice might disclose or reasonably lead to the disclosure of, for example, a judicial candidate attending such a meeting, by inviting surveillance of individuals who enter or leave the JSC's noticed meeting place.

 

3. Meetings concerning matters other than confidential investigations, deliberations, files or records. It is reasonable to assume that some, or a portion of some, JSC meetings may concern administrative or other matters which do not fall within the legislative grant of confidentiality; for example, procedural rules or evaluation criteria. It is the Commission's opinion that public notice is required for such meetings.

 

It is also the Commission's opinion that the JSC must comply with the minutes-keeping requirements of the FOI Act. Without approved minutes, there would be no official permanent record that the JSC in fact held meetings for the transaction of its business as required by public agency law. 2 Am. Jur. 2d, Administrative Law 227. See also Ziomek v. Bartimole, 156 Conn. 604, 612 (1968). Nor would there be such a record to support the reimbursement of expenses. Conn. Gen. Stat. 51-44a(d)(3). Furthermore, as in the case of meeting notices, it is reasonable to assume that some, or a portion of some, JSC minutes may concern matters which are not confidential under 51-44a.

 

Furthermore, for reasons similar to those set forth above with respect to the JSC's minutes, it is the Commission's opinion that the JSC must comply with the requirements of the FOI Act for keeping a record of its members' votes, with one notable exception.

 

Conn. Gen. Stat. l-21(a), in pertinent part, provides:

 

The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing . . . and shall also be recorded in the minutes of the session at which taken. . . .

 

 

Conn. Gen. Stat. 51-44a(i), however, states that although the vote of the JSC on an incumbent judge may be by secret ballot, the vote on a new nominee must not be by secret ballot.

 

Thus, while the JSC need not record the votes of each of its members on issues relating to incumbent judges, it must at least keep a numerical record of its members' votes for purposes of 51-44a(e). It must also record the votes of each of its members on issues relating to new judge candidates.

 

The Commission stresses that this opinion should not be construed to limit the JSC's obligation under 51-44a to exclude the public from those meetings or those portions of its meetings constituting investigations or deliberations or at which the contents of its files or records will be disclosed. Nor should this opinion be construed to limit the JSC's obligation under 51-44a not to disclose those portions of its minutes (including those describing what transpired at executive sessions), or its record of votes, concerning JSC investigations or deliberations or the contents of its files or records. The Commission believes that these matters are exceptions to the FOI Act by virtue of Conn. Gen. Stat. 51-44a.

 

 

 

 

 

 

By Order of the Freedom of
Information Commission

 

________________________
Curtis Cofield, Chairman

Dated: ___________________

Ordered:_________________

Karen Haggett,
Clerk of the Commission