March 5, 2010
By: Kristin Sullivan, Principal Analyst
You asked for a summary of the procedure public agencies must follow under the Freedom of Information Act (FOIA) for conducting executive sessions.
FOIA generally requires all public agencies to open their meetings, hearings, and other proceedings to the public. However, it specifies limited circumstances under which members, by a two-thirds vote of those present, may conduct proceedings behind closed doors in executive session. The reason or reasons for entering into executive session must be stated at the public meeting. And any vote resulting from discussion during an executive session must occur during the portion of the public meeting.
Executive sessions may be held to discuss:
1. individual officers or employees (unless the officer or employee asks for a public hearing);
2. strategies and negotiations about pending claims or pending litigation involving the agency or a member;
3. security matters;
4. real estate transactions by a political subdivision when publicity would likely cause a price increase; or
5. any matter that would result in disclosing a public record that is exempt from disclosure (CGS § 1-200(6)).
FOIA specifically prohibits an agency from calling an executive session to receive or discuss oral communication that would be protected by attorney-client privilege if the agency were a nongovernmental entity. But the agency may do so if it needs to discuss the communication for any of the purposes listed above. It may also invite people to present testimony or opinions, but their attendance must be limited to the time necessary to make their presentation (CGS § 1-231).
An executive session may convene if two-thirds of the agency members attending a public meeting vote to close it for one of the reasons listed above. The reason or reasons for entering into executive session must be stated at the public meeting. If the public meeting's primary purpose is to enter into executive session, its agenda must be filed like any other—24 hours in advance—and indicate the anticipated executive session (CGS §§ 1-225(c) and (f)).
Business or discussion during an executive session must be limited to the subject(s) covered by the vote to close a portion of the meeting (CGS § 1-231). Any vote on topics discussed during the executive session must be taken during the public portion of the meeting (see Docket #FIC 2005-590).
The public meeting minutes must include the (1) reason for entering into executive session, (2) vote to convene, and (3) votes on any other issue. The executive session minutes must include the names of each attendee, excluding job applicants whom the members interview (CGS §§ 1-225(a) and 1-231).