FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Brian Clemow,
Complainant
against Docket #FIC 90-85
State of Connecticut Office of the Attorney General,
Respondent February 27, 1991
The above-captioned matter was heard as a contested case on June 18 and 19, 1990, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 90-84, Brian Clemow v. Board of Mediation and Arbitration.
On June 19, 1990, the disputed record was submitted to the Commission for in camera inspection.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated March 2, 1990 and filed with the Commission on March 5, 1990, the complainant appealed to the Commission, alleging that the respondent denied his February 13, 1990 request for certain records.
3. It is found that the complainant by letter dated February 13, 1990 requested from the respondent copies of the following records:
a. any and all memoranda, letters, advisory opinions and recommendations or reports issued by the respondent to the State Board of Mediation and Arbitration on or after July 1, 1989, concerning the scope, application, or interpretation of 7-473(c), G.S.
b. any and all information or documentation concerning any meetings of the Board of Mediation and Arbitration held on or after July 1, 1989 at which someone from the respondent's office provided information concerning the scope, application or interpretation of 7-473(c), G.S.
Docket #FIC 90-85 Page 2
4. It is found that the complainant sought records pertaining to the Board of Mediation and Arbitration's decision to reject his claim concerning the interpretation of a statute, 7-473(c), G.S., governing the mandatory arbitration of a labor dispute between the complainant's client and a municipal employee organization.
5. At hearing, the complainant withdrew that portion of his request which could be interpreted as seeking records concerning matters other than the issue described in paragraph 4, above.
6. It is found that the only document responsive to the complainant's request which is at issue in this case is a copy of the respondent's handwritten notes regarding legal advice to be given to the Board, which the respondent refused to provide to the complaint.
7. It is concluded that the record described in paragrah 6, above, is a public record within the meaning of 1-18a(d), G.S.
8. The respondent and its client Board of Mediation and Arbitration maintain that the record described in paragraph 6, above, constitutes a communication privileged by the attorney-client relationship, and therefore is permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
9. It is found that the Board sought legal advice from the respondent in confidence, and intended its discussions of the advice to be confidential.
10. It is found that the disputed record is a communication relating to the advice provided by the Attorney General's office.
11. The complainant maintains that the attorney-client privilege is not applicable to the record at issue, because the Board is not a party to the underlying labor dispute.
12. It is concluded, however, that the assertion of the attorney-client privilege is not limited to clients who are parties to disputes.
13. The complainant also maintains that the Board waived any attorney-client privilege by discussing the advice at its October 26 and November 20 meetings without convening in executive session.
14. It is found, however, that the complainant offered no evidence to prove that persons other than the Board and its agents were present at the discussions referenced in paragraph 13, above.
Docket #FIC 90-85 Page 3
15. It is concluded therefore that the Board did not waive the attorney-client privilege, and that the requested record is permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
16. The Commission notes that it fails to understand what legitimate purpose is served by withholding the requested record, or how the respondent or the Board could be disadvantaged, or the complainant advantaged, by its disclosure. However, questions of specific harm or prejudice are not properly determinative of the scope of 1-19(b)(10), G.S., and the Commission may not substitute its discretionary judgment for the respondent's regarding whether to disclose records permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
17. Having concluded that the disputed record is permissibly exempt pursuant to 1-19(b)(10), G.S., it is unnecessary to consider the respondent's alternative claim that the records should not be disclosed pursuant to 1-19b(b)(1), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by order of the Freedom of Information Commission at its regular meeting of February 27, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-85 Page 4
PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
BRIAN CLEMOW
c/o Mark K. Ostrowski, Esq.
Shipman & Goodwin
799 Main Street
Hartford, CT 06103
STATE OF CONNECTICUT, OFFICE OF THE ATTORNEY GENERAL
c/o Beth Z. Margulies
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06106
Tina C. Frappier
Acting Clerk of the Commission