DocketNumber: No. CV 950553651
Citation Numbers: 1996 Conn. Super. Ct. 10187, 18 Conn. L. Rptr. 253
Judges: McWEENY, J.
Filed Date: 11/21/1996
Status: Non-Precedential
Modified Date: 4/18/2021
The following facts are pertinent. At the regular meeting of the Town Council on April 1, 1995, Furhman announced that The Hartford Courant reported that Waste Management of Connecticut, Inc. (Waste Management), "had entered a bid for the disposal of 150,000 tons of sediment from the Howland Hook Terminal [in Staten Island]." Waste Management wished to dispose of the sediment at the New Milford landfill. The minutes from that meeting demonstrate that Furhman stated she had consulted with various people, including Waste Management. Furhman also described the efforts made to gather further information on this subject.
During that meeting, the council publicly passed a motion to oppose Waste Management's proposal. It also publicly approved two supplemental appropriations of $15,000 to retain an environmental consultant and $10,000 to retain and appoint special legal counsel on the waste disposal issue. CT Page 10189
At a subsequent regular meeting on April 24, 1995, the Town Council announced it had chosen Apex Environmental, an environmental consulting firm, to work with the town to address Waste Management's request to dispose of the sediment at the New Milford landfill. After discussion of the need to obtain a preliminary assessment of the situation from Apex, the Town Council voted to give Furhman permission to retain Apex.
This issue was raised again at a special meeting of the Town Council on June 1, 1995. Item 8a of the agenda for that meeting stated that the Town Council might go into executive session to discuss the sediment disposal issue. Before the Council convened the executive session, Furhman publicly stated that Apex had done some review work but had not yet submitted a full report on the situation. Attorney Marianne Dubuque of Carmody and Torrence, who was retained for purposes of taking any action necessary on behalf of the town, was present during this June 1, 1995 public meeting and at the Town Council's executive session.
Following the executive session, the Town Council approved in open session a supplemental appropriation of $20,000 to the "Special Legal Sludge" account for attorneys fees on the sediment disposal controversy, and voted for another appropriation of $10,000 to the "Environmental Sludge Consultant" account.
Jay Lewin, the complainant, filed his complaint with the FOIC on June 7, 1995, claiming that the executive session covered topics that were not included in the pending litigation exclusion of §
The council's executive session also included the following topics: a) the amount of money to be spent CT Page 10190 on consultants and attorneys and the hiring of a lobbyist; b) the contents of some prior consultants' reports; c) the frequency of updates from lawyers and consultants; and d) legal options of the town including the feasibility of a declaratory judgment before [the] superior court, whether an immediate claim could be filed against the DEP, and appropriate timing of any such filings."
The FOIC concluded that while discussion in executive session of legal options described under item d) was permitted pursuant to General Statutes §
The issue of mootness must be addressed before the merits of this appeal are considered, because it implicates the subject matter jurisdiction of the court over this appeal. Ayala v. Smith,
"Mootness applies to situations where events have occurred during the pendency of an appeal that make [a] . . . court incapable of granting practical relief through a disposition on the merits." (Citation omitted.)Sobocinski v. FOIC,
The FOIC argues that its order requires the Town Council to strictly comply with the requirements of the FOIA as they apply to the facts of this case. Accordingly, the FOIC argues there is no case or controversy before the court and no possible relief can be granted.
In fact, the FOIC's order states: "Henceforth the respondent shall strictly comply with the provisions of §
Pursuant to General Statutes §
This is not a case where the relief has already been granted; Lucarelli v. FOIC,
The plaintiffs seek to have the prospective and broad order of the FOIC vacated. It has not yet retained that relief. Thus, this appeal is not moot.
Turning to the merits of this appeal, the plaintiffs argue that the FOIC improperly interpreted and applied the "strategy . . . with respect to pending . . . litigation" exception, as provided in §
Under General Statutes §
"Pending litigation" is also a defined term. "`Pending litigation' means (1) 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; (2) the service of a complaint against an agency returnable to a court which seeks CT Page 10193 to enforce or implement legal relief or a legal right; or (3) the agency's consideration of action to enforce or implement legal relief or a legal right." §
The overarching legislative policy of the FOIA is one that favors the open conduct of government and free public access to government records. Perkins v. Freedom of Information Commission,
228 Conn. 158 ,166 (1993) . . . The sponsors of the FOIA understood the legislation to express the people's sovereignty over the agencies which serve them . . . and this court consistently has interpreted that expression to require diligent protection of the public's right of access to agency proceedings. [The] construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.
(Citations and internal quotation marks omitted.)Glastonbury Education Assn. v. Freedom of InformationCommission,
A trial court may reverse the decision of the FOIC if the decision evinces an error of law pursuant to General Statutes §
As to the first inquiry, the matters discussed by the Town Council in executive session involved "pending litigation." The defendants correctly point out "that exceptions to the FOIA's open hearings requirement CT Page 10194 are to be construed narrowly." Board of Education ofRidgefield v. FOIC,
The definition of "pending litigation" was added to the statute in
The Town Council was concerned about the possible effects the disposal of sediment would have on the landfill and New Milford. During the June 1, 1995 executive session, the Town Council considered its possible legal options and responses to the disposal application. The council was considering action to implement legal relief and enforce the town's legal rights. Therefore, the executive session was held for purposes of discussing "pending litigation."
Furthermore, the purpose of the executive session was to discuss "strategy" with respect to the sediment disposal issue. All the topics included in the Town Council's discussion were related to the town's strategy in addressing the sediment disposal issue. CT Page 10195
The plaintiffs ask this court to adopt the reasoning of other jurisdictions that hold to the extent it is burdensome and impractical segregating topics "into open and closed sessions" are unnecessary. Kansas v.Board of Education of Unified School District No. 305,
Section
At this point it is important to note that the term "legal" was not inserted before "strategy" in Section
The FOIC determined and the record in this case supports that the Town Council considered various plans of action. For purposes of choosing a plan of CT Page 10196 action and balancing the advantages and disadvantages of each plan considered; the Town Council properly discussed in executive session attorneys fees, including those for hiring an attorney lobbyist from Attorney Dubuque's firm to approach the DEP on the sediment disposal issue. The cost of environmental consultants was also contemplated, as was the cost of each strategy the town considered pursuing. The complainant argues in his brief that the Town Council could have labelled each option "A" and "B" and that "[a]fter discussing their merits in executive session, the cost of each could then be discussed in public session and yet maintain the necessary degree of confidentiality." This suggestion, while creative does not change the fact that this topic involves strategy under the statute and may properly be taken up in executive session. Significantly, however, the Town Council publicly appropriated funds for attorneys and consultants directly following the executive session on June 1, 1995. These topics were not improperly included in the executive session discussions.
As to the preliminary consultant's report, it was produced by the consultant to analyze the sediment to determine its toxicity. The outcome of the environmental analysis on the size of the threat the sediment posed would affect the town's choice of strategy. The FOIC misinterpreted and misapplied the law in determining that this topic was not an integral part of the Town Council's strategy discussions.
There is one topic with respect to which the FOIC was correct. The brief discussion of the frequency of progress reports from attorneys and consultants was not properly held in executive session. While administrative in nature, it is not related to the Town's plan of action or the process it followed in choosing such a plan. Furthermore, it is not protected by the attorney-client privilege under General Statutes § 1-21g(b), which 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 subsection (e) of section CT Page 10197
For the reasons stated above, the plaintiffs' appeal is sustained and the case is remanded to the FOIC for further proceedings. General Statutes §
McWEENY, J.