FIC1991-254

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Thomas F. Lepore and Della Construction Co., Inc.,

Complainants

against Docket #FIC 91-254

General Manager, Town of Manchester,

Respondent July 22, 1992

The above-captioned matter was heard as a contested case on December 20, 1991, and January 31, 1992, at which times the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The original caption for this case, Thomas F. Lepore v. General Manager, Town of Manchester has been amended to correctly identify the complainants in this matter.

At the December 20, 1991 hearing on the above-captioned matter the respondent made a request to submit the undisclosed records at issue to the Commission for in camera review. The request for an in camera submission was granted by the hearing officer. The records at issue were submitted for in camera inspection on December 20, 1991. A total of twenty-five sets of documents have been submitted for review. The documents have been designated as items 91-254-1 through 91-254-25, respectively.

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. It is found that on or about June 10, 1991 the complainants orally requested that the Town of Manchester (hereinafter "Town"), permit them to examine and make copies of all documents pertaining to Department of Transportation project number 76-135 (hereinafter "project).

3. Specifically, the complainants' agent, Marvin Gates, telephoned the Town's Attorney, Maureen Chmielecki.

Docket #FIC 91-254 Page 2

4. It is found that during the course of that telephone conversation the Town Attorney informed Mr. Gates that the Town would comply with the request, however, because the project at issue spaned a period of approximately twenty years the Town would first have to locate, then review the files.

5. The respondent concedes, however, that at the time of the June request neither he nor the Town believed that they were subject to the Freedom of Information Act's (hereinafter "FOIA"), time constraints as set forth in 1-15 and 1-19, G.S.

6. It is found that approximately two weeks later, the complainants or their agents telephoned the Town Attorney on at least one other occasion to inquire about the time frame for compliance.

7. It is found that the complainants, unsatisfied with the Town's response, made a written request to the respondent for the project records on or about July 19, 1991.

8. The Commission notes that 1-19(a), G.S., does not require a written request for access to public records.

9. It is found that the initial review and compilation of the project records began on or about July 24, 1991, more than one month after the first records request.

10. It is found that the requested records were maintained in files located in approximately four different divisions of the respondent's office.

11. It is found that the records were compiled and assembled at one location for review by the respondent's counsel before a decision about disclosure was made.

12. The respondent concedes that the process of retrieval, review, and removal of documents believed to be exempt from disclosure, was lengthy and rigorous.

13. It is found that approximately 14,000 documents have been identified by the respondent as responsive to the complainants' records request.

14. Specifically, it is found that approximately 4,000 of the project records are currently located in the files of several different departments or divisions in the Town of Manchester (hereinafter "Town"). And approximately 10,000 of the documents are presently in the custody of Fuss & O'Neill

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15. It is found that Fuss & O'Neill is a private firm of consulting engineers that the Town has contracted with to design the project and administer its construction.

16. It is found that Fuss & O'Neill is not a public agency within the meaning of 1-18a(a), G.S.

17. It is found, however, that the respondent failed to prove that the 10,000 records that it concedes are in the possession of Fuss & O'Neill are not Town records that have been transferred to, or relocated at the firm's offices so that it can perform its duties in connection with the project.

18. It is found that during the later part of July, 1991, the respondent informed the complainants or their representative that the requested records would be available to them on August 12, 1991 at the Town's offices.

19. It is found that on or about July 31, 1991 the complainants sent a letter to the respondent confirming their understanding that they would be given the opportunity to examine and copy the project records on August 12, 1991.

20. It is found that on August 12, 1991, the complainants' representative, Marvin Gates, went to the Town's offices as prearranged.

21. It is found that on August 12, 1991, the respondent declined to provide the complainants with access to the requested records because the Town Attorney was not available to supervise Mr. Gates' review of the documents.

22. By letter dated August 12, 1991, and filed with the Commission on August 16, 1991, the complainants alleged a pattern and practice of denying access to, and copies of the project records.

23. It is found that the requested records are public records within the meaning of 1-18a(d), G.S.

24. It is found that the complainants first had access to the records at issue on or about August 19, 1991.

25. It is found that on or about August 19, 1991, the complainants were given access to approximately 4,000 documents.

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26. It is found that while it took the respondent more than two months to provide the complainants with access to, and/or copies of the records requested, given the volume of materials at issue some delay in granting access was bound to occur.

27. It is also found, however, that the initial one month delay in responding to the first records request--because the respondent failed to retrieve or review the documents sooner than July 24, 1991--necessarily meant that a more prompt reply would not be forthcoming.

28. It is therefore concluded that the respondent's failure to begin the process of locating, organizing and reviewing the voluminous files sooner than July 24, 1991--one month after the complainants' first request--constitutes a violation of 1-19(a), G.S.

29. It is found that approximately twenty-five sets of documents were withheld from disclosure on August 19th on the advice of the Town Attorney's office.

30. The respondent argues that the twenty-five documents withheld from disclosure are protected from disclosure by the law of attorney-client privilege.

31. Section 1-19(b)(10), G.S., states in relevant part:

Nothing in sections 1-15,... [et seq.], shall be construed to require disclosure of...(10)...communications privileged by the attorney-client relationship....

32. The Commission defers to the rule of attorney-client privilege as stated by Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except that the protection [may] be waived.

8 Wigmore Evidence 2292, p.554

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33. After a thorough review of the documents described in paragraphs 29 and 30 of the findings above, which were submitted for in camera inspection by the Commission, it is found that the following four documents do not contain communications privileged by the attorney-client relationship:

(a) 91-254-4: August 19, 1991 transmit confirmation report and fax cover letter;

(b) 91-254-6: August 20, 1991 fax cover letter and message dated August 19, 1991 from Bill Snow and attachments concerning projects awarded to Della Construction Co., Inc.;

(d) 91-254-20: October 31, 1991 fax cover letter.

34. It is concluded that the records identified in paragraph 33, above, were not properly withheld from disclosure based upon a claim of attorney-client privilege and therefore, the respondent violated 1-15 and 1-19, G.S., by failing to disclose them.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. Henceforth the respondent shall fully comply with the open records provisions set forth in 1-15 and 1-19(a), G.S.

2. The respondent shall forthwith provide the complainants with those four documents identified in paragraph 33 of the findings, above.

3. In complying with paragraph 2 of the order, above, the respondent may redact with respect to the records identified in paragraph 33(a) and (d) of the findings, above, any written note following the last typewritten line.

4. Within ten days of the date of the final decision in this matter, the respondent shall either provide a sworn affidavit that the records in the custody of Fuss & O'Neill are not public records created for or by the town, or make the estimated 10,000 records available to the complainants, if they have not already done so.

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Approved by Order of the Freedom of Information Commission at its regular meeting of July 22, 1992.

Debra L. Rembowski

Acting Clerk of the Commission

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:

KEVIN P. BARRY, ESQ.

c/o Della Construction Company, Inc.

1 Depot Hill Road

P.O. Box 1290

Enfield, CT 06083

PATRICIA REILLY, ESQ.

Tyler, Cooper & Alcorn

205 Church Street

P.O. Box 1936

New Haven, CT 06509-1910

Debra L. Rembowski

Acting Clerk of the Commission