HARTFORD — Three decades ago, lawmakers amended a provision in the state’s freedom of information law to prevent public agencies entering executive session to consult with attorneys on general legal matters. A study of the issue at the time found that government agencies were paying attorneys to attend meetings so that the public could be excluded from controversial discussions.
“Put bluntly, public agencies used taxpayer money to pay for attorneys so that they (the agencies) could hide matters of civic importance from the taxpayers until after the fact,” the Connecticut Council on Freedom of Information stated in written testimony submitted to a legislative committee this past week.
The testimony was in opposition to legislation pending in the General Assembly’s Government Administration and Elections Committee that would once again allow public agencies at the state and municipal level to enter executive session to seek legal advice from an attorney. There are already provisions in the Freedom of Information Act allowing public agencies and attorneys to privately discuss pending litigation, said James Smith, president of the Connecticut Council on Freedom of Information.
“The attorney-client privilege is already part of the freedom of information law,” Smith said Thursday. “That’s the way that it should stay.”
Five provisions in the state’s freedom of information law allow public agencies to enter into executive session, a meeting closed to the public. Since the law was established in 1975, closed meetings have been allowed when agencies are discussing “strategy and negotiations” regarding pending claims or litigation, as long as the agency or a member of the agency is a party to such litigation. Closed meetings can also be called to discuss employment, security or real estate matters in certain circumstances.
In 1986, the General Assembly passed an amendment that prevents public agencies from convening in closed session to “receive or discuss oral communications” that would otherwise be privileged by the attorney-client relationship. The amendment was introduced in response to reports of public agencies hiring attorneys to attend meetings so that the agency could discuss controversial topics in private meetings that otherwise wouldn’t be allowed by state law.
“It was out of control,” Smith said. “We put an end to it then.”
The amendment passed 30 years ago doesn’t preclude public agencies from receiving general legal advice, Daniel Klau, an attorney who serves as legislative chair on the Connecticut Council on Freedom of Information, wrote in testimony to the committee on Monday. General legal advice can be provided during closed meetings, as long as the advice is written down first. The writing requirement prevents abuse of executive sessions, Klau noted.
Mary Schwind, managing director and associate general counsel of the state Freedom of Information Commission, said Thursday the pending legislation is unnecessary and broad.
“If passed, it would result in less transparency,” she said.
Similar proposals have surfaced over the years, most recently in 2012. That bill never passed out of committee. The impetus of the pending bill is unclear, Schwind said. It would encompass discussions required to be held in public, such as a variance by a zoning commission or discussion of the budget by a finance board.
“We think it’s completely unnecessary,” she said. “Public attorneys should be speaking in public.”
Sen. Steve Cassano, D-Manchester, co-chair of the Government Administration and Elections Committee, said Thursday he doesn’t think there is support in the committee for the legislation. As the former mayor of Manchester, Cassano said, he has experience dealing with freedom of information laws at the municipal level. The pending bill is “too broad,” he said.
When the bill was first brought to the committee, the original description sought to clarify what communications were allowed in executive session.
“That’s not what this bill does,” he said. “It didn’t make sense to me.”
The state Commission on Human Rights and Opportunities testified in support of the bill. A spokesperson for the commission couldn’t be reached to comment Thursday. In written testimony submitted Monday, the commission stated that the “privilege between an attorney and its client is paramount.”
“While the CHRO appreciates the objective of open government, it is vital that agencies make sound legal decisions,” the testimony states. “The law as it stands only allows state agencies from seeking confidential advice on pending litigation. This bill allows for confidential conversations for any legal matter. These private conversations will ensure that agencies make well-reasoned decisions on all the actions they take. These conversations may in fact allow agencies to avoid litigation and the time and money that go with it.”
A vote has yet to be scheduled for the bill.
Another pending bill in the same committee would allow municipalities to charge additional fees for public records. The fee would not impact media agencies. But the state’s freedom of information law has “always been about equal access for everybody,” Schwind said. Both the state Freedom of Information Commission and Connecticut Council on Freedom of Information submitted testimony Monday in opposition to the bill. Smith noted in his testimony that the bill also doesn’t address the use of cellphones to photograph records. Town clerks in the state are putting title search companies out of business because the companies are being charged $20 per page for every cellphone photo taken of a land record, Smith said. There should be no charge for anyone taking pictures of records with a camera, he added.
Two pending bills in the committee seek to limit the disclosure of birth dates in voter records requested under the Freedom of Information Act. The committee is considering a bill that would prohibit the disclosure of an elector’s birth date in filings with the registrar of voters in a municipality. Another bill in the committee would redact the birth month and day of individuals on voting records obtained through the Freedom of Information Act. The bill would also prohibit the online publication of any such list obtained through the act. Both bills have a scheduled public hearing next week.
Cassano said the legislation is meant to protect residents from solicitors, adding that he “doesn’t know how effective it will be.”
“It’s an attempt to try and correct the situation where we are getting overwhelmed with junk mail,” he said.
In a democracy, “people’s names and addresses and ages are public records,” Smith said of the legislation. “It’s just another attempt to chip away at the fundamentals of democracy. It’s just nonsense.”
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