January 25, 2007
FREEDOM OF INFORMATION'S EXEMPTION FOR REAL ESTATE APPRAISALS
By: Sandra Norman-Eady, Chief Attorney
You asked for the legislative history of CGS § 1-210 (b) (7), an exemption for real estate appraisals under the Freedom of Information Act (FOIA). Specifically you wanted to know if the intent was to keep the appraisals confidential only if disclosure could potentially affect the selling price. We understand that your interest stems from a recent preliminary decision by the Freedom of Information Commission.
FOIA allows public agencies to keep the contents of real estate appraisals, engineering or feasibility estimates, and evaluations relative to property acquisitions, confidential until the property is acquired or transactions are terminated or abandoned. This exemption to the public disclosure law dates back to 1975 when many of the existing provisions in FOIA became law. For example, it was the 1975 public act (PA 75-342) that established the Freedom of Information Commission; extended open meeting provisions to all branches of state government and local government, instead of just the executive branch; and added notice requirements for special meetings.
The legislative history is silent on the intent behind the real estate appraisal exemption. The bill that became law (HB 5087) was referred to the Committee on Government Administration and Policy where it had a hearing on April 8, 1975. Most presenters commented on the new open meeting provisions in light of the recent Watergate hearings. The bill passed unanimously in the House on May 16, 1975 and the Senate on May 21, 1975.
In a recent preliminary decision, Freedom of Information Commission staff held that advisory committee members in Preston did not violate FOIA when they discussed an environment report on Norwich State Hospital during an executive (closed) session because the report was exempt from disclosure. The case goes before the commission on February 14, 2007.
CHOINIERE AND THE DAY V. NORWICH HOSPITAL ADVISORY COMMITTEE, TOWN OF PRESTON
This case consists of four consolidated matters that were heard as three contested cases on October 5, 2006 (FIC 2006-400, 2006-403, and 2006-413). Among other things, the complainants allege that the respondent, Norwich Hospital Advisory Committee, held an illegal executive session at a meeting on August 9, 2006.
By law a public agency can hold an executive session (a closed meeting of a public agency) upon an affirmative vote of two-thirds of its members present and voting. The agency must state the reason for the session by citing one of the many permissible reasons outlined in the law, including to discuss a matter exempt from public disclosure (CGS §§ 1-200 (6) (E) and 1-225).
The Freedom of Information hearing officer found that the (1) real estate environmental evaluations in question were being drafted on the dates the complainants requested them (i.e., the real estate transaction was not complete), (2) evaluations were being completed for the Town of Preston for use in deliberations on whether to acquire the Norwich State Hospital from the state, (3) committee did not state the reason for the executive session on the record, and (4) committee did not record the votes of the motion to go into executive session.
Given its findings, the officer held that the executive session was warranted to prohibit the public discussion of records exempt under CGS § 1-210 (b) (7). The officer found technical FOIA violations due to the committee's failure to (1) clearly state the reason for the executive session and (2) record the votes of each member on the motion to convene the executive session.