Opinion
No. 19055.
2013-10-15
CHAIRPERSON, CONNECTICUT MEDICAL EXAMINING BOARD, et al., v. FREEDOM OF INFORMATION COMMISSION et al.
Kerry Anne Colson, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellants (plaintiffs). Victor Perpetua, principal attorney, with whom, on the brief, was Tracie C. Brown, principal attorney, for the appellee (named defendant).
Kerry Anne Colson, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellants (plaintiffs). Victor Perpetua, principal attorney, with whom, on the brief, was Tracie C. Brown, principal attorney, for the appellee (named defendant).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and McDONALD, Js.
ZARELLA, J.
This is an appeal by the plaintiffs, the Connecticut Medical Examining Board (board) and its chairperson, from the judgment of the trial court dismissing the plaintiffs' appeal from a final decision of the named defendant, the Freedom of Information Commission (commission), in favor of the complainants, Attorney Michael K. Courtney and the Office of the Chief Public Defender. The trial court concluded that the commission properly had found that an executive session convened by the board on February 17, 2009, was not permissible under the Freedom of Information Act (act), General Statutes § 1–200 et seq. The board convened the executive session to obtain legal advice about issues raised in a letter from the complainants dated February 13, 2009 (letter), regarding their request for a declaratory ruling. The plaintiffs claim that the board was permitted to convene in executive session under the act because the letter demanded legal relief and, therefore, constituted notice of a pending claim as defined by § 1–200(8). In addition, the plaintiffs claim that the executive session was permitted under the act because it involved discussions of strategy and negotiations as defined by § 1–200(6)(B). The commission responds that the letter did not constitute notice of a pending claim but, rather, that the complainants merely noted a potential conflict of interest and suggested a course of action. We agree with the commission and, accordingly, affirm the judgment of the trial court.
In addition to the commission, Attorney Courtney and the Office of the Chief Public Defender also were named as defendants in this case. On June 25, 2010, the complainants filed a request with the trial court to uphold the commission's final decision. Since that time, however, the complainants have not been involved in the case.
The commission found the following facts in its final decision dated December 16, 2009. On January 8, 2009, the complainants submitted a “Request for a Declaratory Ruling” to the board asking: “Is physician participation in the execution of condemned Connecticut inmates using lethal injection permitted?” On February 13, 2009, the complainants sent a letter to Assistant Attorney General Thomas J. Ring noting a potential conflict of interest in his possible representation of the board and Robert Galvin, the Commissioner of Public Health. The complainants also sent the board a copy of this letter.
The letter provided in relevant part: “We write to inform you of a potential conflict of interest in your continuing representation of the [board] in [this] matter....
“The [b]oard itself is ‘within the Department of Public Health’.... We understand ... that in accordance with ... General Statutes § 3–125, your office would be called upon to represent the [Commissioner] of Public Health, Robert Galvin, M.D., in any action against him as Commissioner.
“If the [board] were to grant our request for [a] declaratory ruling, and, as part of such ruling, determined that any physician licensed in Connecticut who participated in an execution by lethal injection would be subject to discipline, such ruling would call into question Dr. Galvin's participation in the execution of Michael Ross on May 13, 2005.... Dr. Galvin's participation in any future executions would be problematic.
“It would seem to us that any advice your office might give the [b]oard in determining whether to issue the ruling requested, or as to the content of such a ruling, would pose a significant risk that the representation of one of your two clients, the [b]oard or Dr. Galvin, would be materially limited by your office's responsibilities to the other client.
“We suggest, therefore, that the [board] be provided with outside counsel before making any ruling on this request. We recognize that you may not see this as any real issue, but we felt it incumbent upon us to point this possible conflict out to you.”
At its February 17, 2009 meeting, the board convened in executive session for approximately five minutes to discuss what it deemed to be the “pending claim” contained in the letter to Ring. The next day, the complainants filed a complaint with the commission, alleging that the plaintiffs had “violated the ... [a]ct by convening in executive session during the ... [meeting] for purposes not permitted under the [a]ct.” The complainantsthus requested, inter alia, that the commission order the board to disclose the content of the discussions held during the executive session.
At its January 20, 2009 meeting, the board also convened in executive session to “obtain legal advice” regarding the pending declaratory ruling. (Internal quotation marks omitted.) The board claimed that this executive session was permissible under General Statutes § 52–146r. The commission and trial court disagreed, concluding that General Statutes § 1–231(b) was controlling. The plaintiffs have not challenged this conclusion on appeal to this court.
After a hearing on the matter, the commission concluded that the letter “merely point[ed] out what [the complainants] considered to be a ‘potential’ conflict and only suggested that the ... board be provided with outside legal counsel before issuing a decision related to the request for a declaratory ruling.” (Emphasis in original.) The commission determined that the letter thus did not constitute a pending claim, which may be discussed in executive session under § 1–200(8), because the complainants had deliberately phrased the letter in a way that avoided any implication that they were demanding relief or that they intended to institute an action regarding the potential conflict of interest. In addition, the commission concluded that the plaintiffs had failed to prove that the board discussed “strategy” and “negotiations,” for which executive sessions are permitted under § 1–200(6)(B). (Internal quotation marks omitted.) As a result, the commission determined that the executive session was impermissible under the act and ordered that the plaintiffs “strictly comply” with the provisions of General Statutes § 1–225(a) in the future.
The plaintiffs appealed from the commission's final decision to the trial court, which upheld the commission's decision on June 28, 2011. The trial court agreed that the letter did not constitute notice of a pending claim under § 1–200(8) because the letter itself was “ample evidence that the complainants were not demanding legal relief or asserting a legal right.” In fact, the trial court characterized the plaintiffs' position as “unreasonable....” The trial court therefore dismissed the plaintiffs' appeal. This appeal followed.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–1.
On appeal, the plaintiffs argue that the letter constitutes notice of a pending claim because the letter threatens a claim of conflict of interest or bias, demands legal relief in connection with the request for the declaratory ruling, and challenges the board's right to counsel through the Office of the Attorney General. The commission counters that the letter does not constitute notice of a pending claim because it does not threaten a conflict of interest or bias claim and only suggests that the board retain outside counsel before issuing the declaratory ruling. In addition, the commission contends that the complainants did not have the right to challenge the board's right to counsel through the Office of the Attorney General under General Statutes § 3–125.
This court reviews the trial court's judgment pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4–166 et seq. Under the UAPA, “it is [not] the function ... of this court to retry the case or to substitute its judgment for that of the administrative agency.” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). Even for conclusions of law, “[t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse if its discretion.... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.... [Similarly], this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes.... Cases that present pure questions of law, however, invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference.... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation....” (Citation omitted; internal quotation marks omitted.) Id., at 716–17, 6 A.3d 763. In the present case, the issue before this court requires us to construe § 1–200(6)(B) and (8) to determine whether the letter constitutes notice of a pending claim. Consequently, because the commission's interpretation has not been “subjected to judicial scrutiny or consistently applied by the agency over a long period of time,” our review is de novo. Id., at 717, 6 A.3d 763.
The interpretation of the letter at issue in this case is a question of law. In Board of Education v. Freedom of Information Commission, 217 Conn. 153, 585 A.2d 82 (1991), the commission argued that the interpretation of a letter was a question of fact because it “could not be read in a vacuum, divorced from its surrounding factual background.” Id., at 158 n. 6, 585 A.2d 82. The commission had heard testimony about this factual background, which included conversations that it believed colored the perception that the plaintiff board of education had about the letter. Id. This court disagreed. See id., at 158, 585 A.2d 82. First, this court relied on the commission's final decision, which did not suggest that the conversations affected the perception that the board of education had about the letter. Id., at 159 n. 6, 585 A.2d 82. Second, this court examined the administrative record and did not find any testimony to suggest that the conversations reasonably could have led the board of education to diverge from a literal reading of the letter. Id. Therefore, this court concluded that the interpretation of the letter was a question of law. See id., at 158, 585 A.2d 82.
Similarly, in the present case, the commission's final decision does not suggest that any factual background affected the board's perception of the letter. In addition, the administrative record does not contain any testimony about any factual background that reasonably could have affected the board's perception of the letter. Therefore, in the present case, the interpretation of the letter is a question of law.
As a result, any reference to the complainants' intent in drafting the letter is inappropriate because there was no testimony introduced at the hearing before the commission regarding such intent. The commission made a finding in its final decision that “the complainants' letter did not constitute notice of a pending claim.... [T]he complainants were deliberate in their choice of words when drafting the ... letter because they wanted to avoid even implying that they were demanding any relief or that they intended to institute an action regarding the alleged potential conflict of interest.” This finding was improper as it has no basis in the administrative record.
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter....” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 301 Conn. 323, 338, 21 A.3d 737 (2011). In the present case, the parties contest the meaning of two terms contained within the definition of “pending claim” in § 1–200(8): “demand for legal relief” and “intention to institute an action in an appropriate forum if such relief or right is not granted.” We therefore examine the relevant statutes to determine whether the letter qualifies as a pending claim under § 1–200(8).
The act requires that “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1–200, shall be open to the public.” General Statutes § 1–225(a). Section 1–200(6) defines an executive session as “a meeting of a public agency at which the public is excluded” for one of five specified purposes. This court has narrowly construed these purposes because “the general rule under the ... [a]ct is disclosure....” New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988); see also Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696 A.2d 321 (1997) ( “[t]he overarching legislative policy of the [act] is one that favors the open conduct of government and free public access to government records” [internal quotation marks omitted] ).
.General Statutes § 1–200(6) provides: “ ‘Executive sessions' means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) strategy and negotiations with respect to pending or pending litigation to which the public agency or a member thereof, because of the member's conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1–210.”
The purpose at issue in the present case is set forth in § 1–200(6)(B), which allows an executive session for “strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member's conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled....” Section 1–200(8) defines a pending claim as “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 in an appropriate forum if such relief or right is not granted.”
We conclude that the language of the statute is plain and unambiguous and that the letter does not constitute notice of a pending claim under the exception set forth in § 1–200(6)(B). Under § 1–200(8), a pending claim must set “forth a demand for legal relief” and “stat[e] the intention to institute an action....” “[D]emand” means “[t]he assertion of a legal or procedural right.” Black's Law Dictionary (9th Ed. 2009). Similarly, the plain meaning of “stating the intention” is that the demand actually or expressly states what actions the author intends to take. Although there are no magic words necessary to express demand and intent, the written notice must actually or expressly state that an action is pending or that an action is conditional on relief not being granted. See General Statutes § 1–200(8) (“written notice to an agency which sets for a demandfor legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted ” [emphasis added] ). Because § 1–200(6)(B) and (8) requires actual or express articulation, the proper focus is not on what the board reasonably could have believed but, rather, on what the written notice actually states. The letter in the present case does not contain either a demand for legal relief or evidence of an intent to institute an action in an appropriate forum if the board does not grant that relief. Accordingly, it does not constitute notice of a pending claim.
Artful writers will not be able to avoid the requirements set forth in § 1–200(6)(B) by softening their demands with words like “suggest” or “potential.” If a written notice provides an agency with no viable alternative other than future action or capitulation, then the notice would effectively express intent regardless of the specific language used.
The plaintiffs' reliance on Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158–59 n. 6, 585 A.2d 82 (1991), is misguided. In footnote 5 of this opinion, we explained that the court in Board of Education employed a reasonableness analysis in determining whether interpretation of the letter at issue in that case was a question of law or a question of fact. See id., at 158, 158–59 n. 6, 585 A.2d 82. This reasonableness analysis was not used to determine whether the letter constituted a “pending claim” under § 1–200(8). See id.
We note for clarity that the phrase “the intention to institute an action in an appropriate forum if such relief or right is not granted” applies to both “demand for legal relief” and “assert[ion] [of] a legal right....” General Statutes § 1–200(8). The plaintiffs relied to their detriment on a trial court's interpretation of § 1–200(8) in ECAP Construction Co. v. Freedom of Information Commission, Superior Court, judicial district of Hartford–New Britain, Docket No. CV–97–0574054, 1998 WL 470640 (July 30, 1998). The inclusion of the words “relief or right” clearly demonstrates that the phrase “the intention to institute an action” applies to both a demand for legal relief and the assertion of a legal right.
This court has found pending claims only in situations in which a party expresses “a carefully articulated demand for certain legal relief, a demand asserted to vindicate an alleged legal right personal to [the asserting party].” Board of Education v. Freedom of Information Commission, 217 Conn. 153, 162, 585 A.2d 82 (1991). In Board of Education, the superintendent of schools of the town of Ridgefield issued a directive precluding a high school literary magazine sponsored by the plaintiff board of education from publishing alumni submissions. Id., at 154–55, 585 A.2d 82. Later, the superintendent received a letter stating that, “[i]n an attempt to avoid litigation, which is a very real possibility in this case, I have requested that you withdraw your order.... I told [counsel for the board of education] that I had about two weeks for this decision to be made before papers need be filed in [the United States] District Court asking for an injunction.” (Emphasis in original; internal quotations marks omitted.) Id., at 155 n. 2, 585 A.2d 82. The letter actually and expressly demanded that the board of education engage in certain actions to avoid a future claim. The pending claim was, in effect, “reduced to writing” and “in the ... hands [of the board of education] and awaiting its decision.” Id., at 162, 585 A.2d 82.
In contrast, the plaintiffs' assertion that the letter in the present case constitutes notice of a “pending claim” of conflict of interest is without merit. The plaintiffs argue that the letter references Ring's potential conflict of interest in his representation of the board and Galvin. The plaintiffs also suggest that the letter makes a conflict of interest claim against the board. We consider each of these purported claims in turn.
In his concurring opinion, Justice Norcott states that, “rather than [parse] the language of the letter to determine whether it amounted to a pending claim ... I would always look first instead to the procedural context in which the letter was filed in order to determine whether an executive session was permissible under § 1–200(6)(B) before considering the language of any particular filing therein.” (Citation omitted.) Justice Norcott therefore would look to the request for a declaratory ruling and the proceedings as a whole to determine whether the board could convene in executive session. This analysis is inconsistent with the language and focus of § 1–200(6) and (8). Section 1–200(8) defines a pending claim as “a written notice to an agency....” (Emphasis added.) “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language....” General Statutes § 1–1(a). The clear meaning of “a written notice” is a single document communicating the intent to institute an action. General Statutes § 1–200(8). The first step in determining whether a pending claim exists, therefore, is to identify and analyze that document. See Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162, 585 A.2d 82 (examining text of letter to determine whether it constituted pending claim).
In the present case, we begin our analysis with the letter because the board explicitly represented in the minutes of a board meeting concerning, inter alia, the letter that it “enter[ed] executive session to obtain legal advice from ... Assistant Attorney General [Kerry Anne Colson] to discuss a pending claim contained in a letter from Attorney Courtney to Assistant Attorney General ... Ring.” (Emphasis added.) The board did not meet to discuss the request for a declaratory ruling on whether physician participation in an execution by lethal injection is permitted, and, therefore, we need not determine whether the executive session would have been permissible if the board had done so.
First, a conflict of interest claim against Ring does not qualify under § 1–200(6)(B) because the board would not be a party to any such claim. Section 1–200(6)(B) requires that the “public agency or ... member thereof” be “a party” to the “pending claims or pending litigation....” An agency can be a party to the claim, but only if the claim is directed at the agency itself. See Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162 n. 8, 585 A.2d 82; see also Black's Law Dictionary, supra (defining “party” as “[o]ne by or against whom a lawsuit is brought,” or in the context of contracts, “one who takes part in a transaction”). The letter informs Ring that there is “a significant risk that the representation of one of your two clients ... would be materially limited by your office's responsibilities to the other client.” The letter clearly indicates that the alleged conflict is Ring's, not the board's.
In fact, the complainants might even have had a duty to point out this possible conflict of interest to Ring. See Rules of Professional Conduct, preamble (“Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers.”); see also Rules of Professional Conduct 1.7, commentary (discussing general principles of conflicts of interest).
It is unclear why the complainants decided to send the board a copy of their letter to Ring. In fact, it seems inappropriate that the complainants would have communicated with the board at all, as the board was a client of the Office of the Attorney General. See Rules of Professional Conduct 4.2. Nevertheless, although the complainants' intent might not have been completely noble, that intent is irrelevant in the present case.
The plaintiffs also suggest that the letter constitutes notice of a pending claim because it requests legal relief in connection with the pending request for a declaratory ruling. The pending request for a declaratory ruling is insufficient to qualify as a pending claim under § 1–200(6)(B) because the board would be serving as the decision-making body for that request rather than a party thereto.
In addition, the letter refers to a “potential” future conflict of interest, rather than one that currently exists. At the time of the letter, Ring was not representing both the board and Galvin. The alleged conflict of interest, therefore, is entirely hypothetical, which suggests that the author was not alerting Ring to a pending claim. Moreover, even if the Office of the Attorney General were representing both the board and Galvin concurrently, it would not make sense to treat this situation as a conflict of interest. This court has recognized that the Attorney General is in the “unique position” of representing the state, the state's agencies, and the state's citizens. See Commission on Special Revenue v. Freedom of Information Commission, 174 Conn. 308, 318–20, 387 A.2d 533 (1978). The Attorney General's ethical duties thus should be considered in relation to his “duties as the constitutional civil legal officer of the state,” which include being available to represent these various constituencies. Id., at 322, 387 A.2d 533.
Second, even if the conflict of interest claim had been directed against the board, there is no pending claim because the letter does not actually or expressly demand relief or state an intent to institute an action if that relief is not granted. The plaintiffs argue that the board reasonably could have feared, from reading the letter, that the complainants would bring a claim against the board for a conflict of interest because Galvin, as the Commissioner of Public Health, was ultimately in charge of the board, and, therefore, the board's ruling would affect him. The letter, however, does not mention any “legal relief” that would qualify under § 1–200(8). The only relief of any kind mentioned in the letter is the complainants' “suggest [ion]” that the “[b]oard be provided with outside counsel before making any ruling on [the] request” for a declaration regarding whether physician participation in executions by lethal injection is permissible. Even if the board were provided with outside counsel, that relief would not affect the alleged conflict of interest; the board would be in the same conflicted position with respect to the declaratory rulingregardless of who was advising them. See footnote 13 of this opinion.
The board is a division of the Department of Public Health. See General Statutes § 20–8a (a) (“[t]here shall be within the Department of Public Health a Connecticut Medical Examining Board”). In fact, the Commissioner of Public Health selects the members of the board. See General Statutes § 20–8a (c). Therefore, the board arguably could have a conflict of interest in deciding any affecting the Commissioner of Public Health.
Moreover, unlike the letter in Board of Education, which explicitly demanded legal relief and indicated that action would be taken against the board of education if it did not comply; see Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162, 585 A.2d 82; the letter in the present case merely alerts Ring to a potential conflict of interest and suggests a course of action. Specifically, the letter provides that the complainants seek “to inform [Ring] of a potential conflict of interest in [his] continuing representation of the ... [b]oard,” with no mention of the complainants taking or planning to take further action on this conflict of interest. The letter is not addressed to the board, does not require that the board take any action, and does not state an intent to bring an action in an appropriate forum if the board does not comply. In Board of Education, the decisionto avoid or go forward with the action was conditioned on the decision of the board of education to grant relief; in the present case, however, the decision was not “in the board's hands and awaiting its decision.” Board of Education v. Freedom of Information Commission, supra, at 162, 585 A.2d 82; see id. (“[a]lthough [counsel for the complaining party] stated at several points in the letter that [the complaining party] ... wished to avoid litigation, the only way to avert that outcome, under the terms of the letter, was for the board [of education] essentially to capitulate”). The letter in the present case does not mention that the board has a conflict of interest, and, therefore, the plaintiffs' arguments are entirely speculative.
Even if the complainants needed to mention conflict of interest or bias in order to save the issue for appeal, the mere possibility of a future appeal is not sufficient to constitute a demand for legal relief. In Ansonia Library Board of Directors v. Freedom of Information Commission, 42 Conn.Supp. 84, 600 A.2d 1058 (1991), the trial court correctly rejected the argument that a possible appeal from the commission's decision constituted a pending claim, even though the individual in question had engaged in “prior litigious conduct....” Id., at 90, 600 A.2d 1058. The trial court further noted that the argument “would be more persuasive if, as in Board of Education ... [the individual] had indicated that he was considering or was going to take an appeal.” Id.
The plaintiffs' claim that the letter constitutes notice of a pending bias claim is even further attenuated. If a written notice must actually or expressly demand legal relief, it follows that the claim must actually or expressly be mentioned in the notice itself. Although the letter does mention a “conflict of interest,” the letter does not refer to bias. In order to qualify as a pending claim, the written notice must raise a claim that is more than speculative. The letter simply does not mention a bias claim, and any inference that the complainants would have brought such a claim is based on conjecture.
Finally, the plaintiffs suggest that the letter constitutes notice of a pending claim because it implicates the ability of the Office of the Attorney General to provide counsel to the board under § 3–125. Although § 3–125 does provide the board with a right to representation by the Office of the Attorney General, § 1–200(8) requires that the legal relief or right be personal to the asserting party. See General Statutes § 1–200(8) (stating that pending claim must involve relief or right that agency may grant); Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162, 585 A.2d 82 (stating that letter at issue was “a demand asserted to vindicate an alleged legal right personal to [the asserting parties]” [emphasis added] ). In the present case, the complainants are the asserting parties, but the complainants do not have the right to intervene in the relationship between the Office of the Attorney General and the board. The complainants would not be able to assert the board's right to counsel through the Office of the Attorney General; the appropriate party to assert this right would be the board itself. Cf. Commission on Special Revenue v. Freedom of Information Commission, supra, 174 Conn. at 318–20, 387 A.2d 533. Therefore, the complainants' challenge to the board's representation by the Office of the Attorney General is not a pending claim, and we conclude that the board improperly convened in executive session to obtain legal advice regarding the issue raised in the complainants' letter.
We do not need to reach the issue of whether the executive session in question involved strategy and negotiations. Section 1–200(6)(B) requires that the executive session involve “strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof ... is a party until such litigation or claim has been finally adjudicated or otherwise settled....” Because the letter at issue is not a pending claim, § 1–200(6)(B) is not satisfied regardless of whether the executive session involved strategy and negotiations.
The judgment is affirmed. In this opinion ROGERS, C.J., and PALMER, EVELEIGH and McDONALD, Js., concurred.
NORCOTT, J., concurring.
I reluctantly agree with the majority's ultimate conclusion that the executive sessionconvened by the plaintiffs, the Connecticut Medical Examining Board (board) and its chairperson, on February 17, 2009, to discuss a letter from the complainants, Attorney Michael Courtney and the Office of the Chief Public Defender, dated February 13, 2009 (letter), was a violation of the Freedom of Information Act (act), General Statutes § 1–200 et seq. Specifically, the majority reviews the letter, which had advised the board of a potential conflict of interest in its legal representation, and determines it was not a “ ‘[p]ending claim’ ” as defined by § 1–200(6) and (8) for purposes of authorizing the executive session under General Statutes § 1–231. I write separately, however, because I disagree with the majority's primary analytical focus on the language of the letter, rather than first addressing the nature of the proceedings in which it was filed. Rather than parsing the language of a specific filing in the first instance, I would look instead to the context in which that filing was made to determine whether an executive session to discuss it was permissible under the act. Because the context surrounding the facts of the present case, namely, a request for a declaratory ruling from the board under General Statutes § 4–176(a),294 does not, by itself, constitutea “pending claim” within the meaning of § 1–200(6) and (8), and, as the majority points out, because the letter contains no indication that the complainants would assert any legal rights against the board, I conclude that the board improperly convened the executive session at issue. Accordingly, I concur in the majority's decision to affirm the judgment of the trial court dismissing the board's administrative appeal from the decision of the named defendant, the Freedom of Information Commission (commission). See footnote 1 of the majority opinion.
.General Statutes § 1–200 provides in relevant part: “(6) ‘Executive sessions' means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting; (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member's conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled; (C) matters concerning security strategy or the deployment of security personnel, or devices affecting public security; (D) discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and (E) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1–210....
“(8) ‘Pending claim’ means 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 in an appropriate forum if such relief or right is not granted....” (Emphasis added.)
Although our legislature amended § 1–200 in 2011; see Public Acts 2011, No. 11–220, § 1; that amendment has no bearing on the present appeal. In the interest of simplicity, I refer to the current revision of the statute.
.General Statutes § 1–231 provides: “(a) At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.
“(b) 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 subdivision (6) of section 1–200.”
.General Statutes § 4–176(a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”
I recognize that the majority's opinion, which touches briefly on this issue; see footnote 12 of the majority opinion; in large part reflects the briefing and argument of this case, as well as the trial court's memorandum of decision dismissing the board's administrative appeal. I note, however, that this issue is raised squarely in the board's brief to this court.
I begin by noting my agreement with the majority's statement of the facts, procedural history, standard of review, and background legal principles. Thus, I turn to the board's argument that the record contains substantial evidence that the board had “convene[d] in executive session to discuss strategy and negotiations with respect to a pending claim,” namely, the complainants' request for a “declaratory ruling requesting a determination as to whether it is permissible in Connecticut for a physician to participate in the execution of condemned Connecticut inmates using lethal injection.” I believe it is important to address this particular claim as a threshold matter because the majority's approach of immediately determining whether the letter “constitutes notice of a ‘pending claim’ of conflict of interest” creates a risk of missing the forest through the trees, if extended to future cases challenging an agency's decision to go into executive session. Put differently, rather than parsing the language of the letter to determine whether it amounted to a pending claim; see Board of Education v. Freedom of Information Commission, 217 Conn. 153, 162–63, 585 A.2d 82 (1991); I would always look first instead to the procedural context in which the letter was filed in order to determine whether an executive session was permissible under § 1–200(6)(B) before considering the language of any particular filing therein. This is because, in my view, if the context of the administrative proceeding underlying the filing at issue amounts to a “pending claim,” any documents associated with that proceeding would, a fortiori, appropriately be the subject of an executive session.
The majority then specifically declines “to reach the issue of whether the executive session in question involved strategy and negotiations” under § 1–200(6)(B), determining that, “[b]ecause the letter ... is not a pending claim, § 1–200(6)(B) is not satisfied regardless of whether the executive session involved strategy and negotiations.” See footnote 15 of the majority opinion.
The majority criticizes my focus on the procedural context of the filing at issue as “inconsistent with the language and focus of § 1–200(6) and (8)” on the ground that “a pending claim [is] ‘a written notice to an agency,’ ” because “[t]he clear meaning of ‘a written notice’ is a single document communicating the intent to institute an action.... The first step in determining whether a pending claim exists, therefore, is to identify and analyze that document.” (Citation omitted; emphasis altered.) See footnote 10 of the majority opinion. I respectfully suggest that the majority's criticism is drastically overstated, and is a significant misunderstanding of my point. I agree with the majority that the plain language of § 1–200(8) requires a written filing, and part company from the majority on the facts of this case only as to the particular document that forms the starting point for my analysis. Unlike the majority, which begins and ends its analysis with the letter, however, I start my inquiry with the complainants' request for a declaratory ruling pursuant to § 4–176, which, as a document filed with the board, similarly satisfies the “written notice” aspect of § 1–200(8), even when it is viewed strictly in the singular in accordance with the majority's approach. Viewed more realistically, in my view, the request for a declaratory ruling provides the prism through which we should consider the letter.
Like the majority, I recognize the well established “basic policy of the [act that] supports limiting the exceptions to open meetings. This court has said that it will construe the act to favor disclosure and that exceptions to disclosure must be narrowly construed.... The burden of establishing the applicability of an exception rests upon the party claiming it.... We have not, however, hesitated to apply an exception where the party seeking it has met the burden of establishing that it applies.” (Citations omitted; internal quotation marks omitted.) Furhman v. Freedom of Information Commission, 243 Conn. 427, 432, 703 A.2d 624 (1997).
Thus, I turn to the board's specific arguments on this issue. Relying on Stamford v. Freedom of Information Commission, 241 Conn. 310, 696 A.2d 321 (1997), the board contends that the complainants' request for declaratory ruling constituted a pending claim because “an agency's granting of a declaratory ruling is subject to judicial review and its denial of such a ruling is subject to judicial relief. General Statutes § 4–176. Clearly, such discussions in executive session constituted strategy with respect to a pending claim as the purpose of the meeting was to discuss how to respond to the issues raised in the letter.” I disagree with the board's argument. Given the plain language of our statutory scheme, I conclude that a request to an agency for a declaratory ruling is not by itself a “pending claim” under § 1–200(6)(B), despite the fact that the agency's declaratory ruling could ultimately be the subject of an administrative appeal to the trial court.
On this point, I find instructive a Superior Court decision, Ansonia Library Board of Directors v. Freedom of Information Commission, 42 Conn.Supp. 84, 600 A.2d 1058 (1991), concluding that a library board had improperly conducted an executive session to discuss a prior commission decision in its favor because that matter was no longer pending before the commission, despite the then existing possibility of an administrative appeal from the commission's decision and fact that “the [library] board reasonably expected an appeal from [the complainant], particularly considering his prior litigious conduct towards the library board.” Id., at 90, 600 A.2d 1058. The Superior Court, relying on this court's decision in Board of Education v. Freedom of Information Commission, supra, 217 Conn. 153, 585 A.2d 82, rejected the library board's claim “that it should not have to wait until the appeal was actually taken to discuss litigation strategy to defend a further appeal by [the complainant], and that until the [statutory] appeal period ... had expired, the possibility of an appeal could be considered ‘pending litigation.’ ” Ansonia Library Board of Directors v. Freedom of Information Commission, supra, at 90, 600 A.2d 1058. The court noted that, without an indication on the record that the complainant “had indicated that he was considering or was going to take an appeal ... too broad a reading of the ‘pending claims or litigation’ exception would encourage executive sessions and undercut the fundamental purpose of the [act], namely openness of proceedings of public, governmental agencies. The statute should not be extended to allow an executive session during the time for taking an appeal under General Statutes § 4–183 from a final decision of an administrative agency where no further appeal was in fact threatened.” Id.; see also id., at 91, 600 A.2d 1058 (“After the [commission] made a decision on [the complainant's] claim to it, he no longer had a pending claim under the statutory definition. The possibility that he might bring a further appeal to the Superior Court, without actual notice that an appeal would be brought, is not ‘pending litigation.’ ”). Ultimately, the court emphasized that, “the library board was not allowed to go into executive session because of the unstated possibility that [the complainant] might appeal the [library] board's decision.” Id., at 92, 600 A.2d 1058.
The Superior Court decision in Ansonia Library Board of Directors is consistent with a commentator's recent observation that, although pending claim or litigation exceptions such as that articulated in § 1–200(6)(B) exist to allow “the public body to make sensitive decisions without the knowledge of various opposing parties,” these exceptions nevertheless should be cautiously applied because “much of the business of public boards involves decisions which someone will take offense at and might start a lawsuit, conceivably almost all public business could be considered to be related to litigation in some way, and thus the exception would swallow the rule....” Annot., 35 A.L.R.5th 113, § 2[a] (1996). Thus, I conclude that the mere possibility of an administrative appeal from an agency's decision does not render a petition to that agency or board for action, such as a request for a declaratory ruling like that filed in this case under § 4–176, a “pending claim” for purposes of the act. Compare Manning v. East Tawas, 234 Mich.App. 244, 250–51, 593 N.W.2d 649 (1999) (city council properly met in closed session to discuss litigation already pending as result of its decision to approve plaintiffs' proposed site plan), and Warder v. Board of Regents, 75 App.Div.2d 666, 667, 426 N.Y.S.2d 849 (1980) (board properly met in executive session to discuss already pending litigation, brought against it by applicants), aff'd, 53 N.Y.2d 186, 440 N.Y.S.2d 875, 423 N.E.2d 352, cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981), with Accardi v. Mayor & Council of North Wildwood, 145 N.J.Super. 532, 542, 368 A.2d 416 (Law Div.1976) (rejecting zoning board's argument that “any variance application is ‘in anticipation’ of litigation because any application can be appealed” as “defeat[ing] the very purpose of the [state freedom of information law]”).
Cf. Concerned Citizens to Review Jefferson Valley Mall v. Town Board, 83 App.Div.2d 612, 613, 441 N.Y.S.2d 292 (Concluding that town board improperly met in executive session with shopping mall developer because litigation exception's “purpose ... was to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings.... Thus the provision should not be construed to shield private discussions between a public body and a private litigant from the general requirement that ‘public business be performed in an open and public manner’....” [Citations omitted.] ), appeal dismissed, 54 N.Y.2d 957, 429 N.E.2d 833, 445 N.Y.S.2d 154 (1981).
Thus, although it is plausible that the board's decision on the complainants' request for a declaratory ruling might ultimately be subject to judicial challenge through an administrative appeal—particularly given its controversial subject matter—there is, nevertheless, no indication in the complainants' request for a declaratory ruling “set[ting] forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.” General Statutes § 1–200(8). Put differently, there is nothing in the complainants' request for a declaratory ruling that is at all adversarial in nature with respect to the board itself. See Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162–63, 585 A.2d 82 (during dispute about high school literary magazine, school board properly met in executive session with legal counsel to consider letter from attorney that sought compliance with demand in order to avert threatened action). Moreover, given the myriad administrative agency matters that could form the basis for a subsequent administrative appeal, it would be a classic example of an exception swallowing a rule to consider this request for a declaratory ruling to be a “pending [claim]” against the board as a “party....” General Statutes § 1–200(6)(B). Accordingly, I conclude that the mere possibility of an administrative appeal arising from the board's carrying out its routine business by taking action on the merits of the complainants' request for a declaratory ruling is not enough to render it a pending claim for purposes of justifying an executive session under the act.
I find the board's reliance on Stamford v. Freedom of Information Commission, supra, 241 Conn. 310, 696 A.2d 321, to be misplaced. That case does not support its contention that a request for a declaratory ruling is a pending claim because “an agency's granting of a declaratory ruling is subject to judicial review and its denial of such a ruling is subject to judicial relief” under § 4–176. In Stamford, this court concluded that a report prepared by a private attorney retained to “conduct an investigation into the propriety of several of the [city's] contracts and payments related to construction of a municipal transfer and recycling station, a municipal ‘haulaway’ by [a private contractor], and repairs to a municipal incinerator,” was exempt from disclosure under the act. (Footnote omitted.) Id., at 312, 696 A.2d 321. In so concluding, this court relied on correspondence from the attorney to the contractor “outlining the scope of his investigation and from [the contractor] to the [city] formally requesting the [investigative] report”; id., at 315, 696 A.2d 321; and held that “the only reasonable determination that the commission could have reached was that the [investigative] report did so pertain” to “ ‘strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.’ ” Id., at 317–18, 696 A.2d 321. The court noted that the correspondence from the attorney made clear that the report pertained to matters that were encompassed in litigation between the city and the contractor that already was pending. Id., at 319, 696 A.2d 321. Given the existence therein of litigation to which the public body already was a party, Stamford is readily distinguishable from the present case, the record of which does not even contain a dispute or threat of litigation between the board and the complainants or another third party. See Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162–63, 585 A.2d 82; see also Furhman v. Freedom of Information Commission, supra, 243 Conn. at 430–33, 703 A.2d 624 (town council's executive session to discuss with counsel town's response to landfill permit application pending before state Department of Environmental Protection was permissible discussion of “strategy and negotiations” when that discussion included feasibility of civil actions, review of environmental consultants' reports, hiring of lobbyists to aid in administrative proceedings, and budget for undertaking matter, as “cost of additional consultants and attorneys was a factor to be considered with respect to any action to enforce a legal right” and “[d]iscussion of the relevant costs of those attorneys and consultants is therefore ‘consideration’ of ‘action’ within the statutory exemption”).
In my view, however, the result in the current case, although dictated by the existing statutory scheme, calls for legislative attention to provide increased protection of the relationships between public bodies and the attorneys that serve them, both in the deliberative and litigation processes. Although the legislature has established an attorney-client privilege for public agencies; see General Statutes § 52–146r; § 1–231(b) tempers that promiseof confidentiality by making clear that the statutory privilege does not provide carte blanche for agencies to conduct executive sessions with their attorneys, limiting such sessions to the purposes identified in § 1–200(6)(B). See Board of Education v. Freedom of Information Commission, supra, 217 Conn. at 162–63, 585 A.2d 82. Thus, although cognizant of the need for public agencies to conduct their business openly, I would urge the legislature to safeguard the relationships between public agencies and their attorneys by permitting the use of executive sessions to explore matters implicating the foundation of the attorney-client relationship, such as the conflict of interest issue highlighted by the complainants in this case. Cf. Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000) (“In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.... The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] administration of justice.” [Citation omitted; internal quotation marks omitted.] ).
.General Statutes § 52–146r provides “(a) As used in this section:
“(1) ‘Authorized representative’ means an individual empowered by a public agency to assert the confidentiality of communications that are privileged under this section;
“(2) ‘Confidential communications' means all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice;
“(3)'Government attorney' means a person admitted to the bar of this state and employed by a public agency or retained by a public agency or public official to provide legal advice to the public agency or a public official or employee of such public agency; and
“(4)'Public agency' means ‘public agency’ as defined in section 1–200.
“(b) In any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.”
“[T]he essential elements of the attorney-client privilege under both statutory and common law are identical. Therefore, for purposes of both [General Statutes] §§ 1–210(b)(1) and 52–146r, we apply a four part test to determine whether communications are privileged: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.” (Internal quotation marks omitted.) Lash v. Freedom of Information Commission, 300 Conn. 511, 516, 14 A.3d 998 (2011).
Like the majority, I would, therefore, affirm the judgment of the trial court.