FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Robert Fromer,

Complainant

against Docket #FIC 92-71

New London Director of Law,

Respondent February 24, 1993

The above-captioned matter was heard as a contested case on July 7, 1992, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. By letter dated February 6, 1992, the complainant requested from the respondent access to certain case files in which the City of New London (hereinafter "City") was a party to litigation. The case files requested from the respondent consist of ten cases that were listed in an interdepartmental memorandum entitled "Report on Litigation" from the respondent to the City Council, dated January 29, 1992 (hereinafter "case files").

2. By reply letter dated February 20, 1992, the respondent informed the complainant that disclosure of the requested case files would violate the the attorney-client privilege and the Code of Professional Conduct for attorneys and referred the complainant to the courts where the cases to which the files relate were returned.

3. By letter dated February 25, 1992 and filed February 26, 1992, the complainant appealed the respondent's denial of access to the requested case files to the Commission.

4. Specifically, the complainant wishes to review legal briefs, bills, memoranda to City Council and all other records that he is entitled to under the Freedom of Information ("FOI") Act, contained in the case files.

5.

Docket #FIC 92-71 Page 2

5. Subsequent to this complaint, the individual serving as the respondent director of law died and was replaced by the current incumbent respondent who also is engaged in the private practice of law.

6. The current incumbent respondent maintains that as a private practioner of law, he is not a public agency and that the requested case files are not public records subject to disclosure under the FOI Act.

7. It is found that pursuant to the City charter the respondent acts as the head of the City's Department of Law and as chief legal advisor of, and attorney for, the City.

8. It is concluded that when acting in his capacity as New London's Director of Law, the current incumbent respondent is himself a City official and therefore a public agency within the meaning of 1-18a(a), G.S.

9. It is further concluded that the respondent as head of New London's Department of Law, is responsible for keeping and maintaining the department's records, including the requested case files, as required by 1-19(a), G.S., and for obtaining, on request for inspection or copying, all records to which the agency itself is legally entitled.

10. The respondent maintains that the requested case files are exempt from disclosure pursuant to 1-19(b)(4) and 1-19(b)(10), G.S.

11. Section 1-19(b)(4), G.S., exempts from disclosure:

"records pertaining 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."

12. The respondent claims that at the time of the complainant's request many of the cases to which the files in question relate were still pending.

13. It is concluded that the records contained in the requested case files which pertain to strategy or negotiations with respect to pending litigation are exempt from disclosure pursuant to 1-19(b)(4), G.S.

14. Section 1-19(b)(10), G.S., permits the nondisclosure of "communications privileged by the attorney-client relationship."

Docket #FIC 92-71 Page 3

15. It is concluded that those portions of the records contained in the requested case files which constitute communications privileged by the attorney-client relationship are exempt from disclosure pursuant to 1-19(b)(10), G.S.

16. The current incumbent respondent claims that not all of the requested case files are in his actual possession because some are located at the office of the former respondent and some may be in the possession of other attorneys to whom the former respondent delegated responsibility, on approval by the City Council. He further maintains that to require him to locate the requested case files and peruse them to ascertain whether exemptions to disclosure would apply, would be overly burdensome and time consuming.

17. It is concluded however, that all of the non-exempt records requested by the complainant, access to which the respondent is legally entitled, whether such records are in the possession of the current incumbent respondent, his predecessors or some other attorney appointed by the City, are public records within the meaning of 1-18a(d), G.S., and are subject to disclosure under 1-15(a) and 1-19(a), G.S. To hold otherwise would be to permit agencies to avoid disclosure of otherwise public records merely by transferring physical possession to another person.

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

1. The respondent shall forthwith provide the complainant with a copy of all records contained in the requested case files that are not exempt from disclosure by virtue of 1-19(b)(4) and 1-19(b)(10), G.S, as described in paragraphs 13 and 15, of the findings above.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 1993.

Debra L. Rembowski

Acting Clerk of the Commission

Docket #FIC 92-71 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:

Robert Fromer

281 Gardner Avenue, J4

New London, CT 06320

Thomas Londregan

New London Director of Law

c/o Conway, Londregan & McNamara, P.C.

38 Huntington Street

P.O. Box 1351

New London, CT 06320

Debra L. Rembowski

Acting Clerk of the Commission

New London Director of Law,

Respondent February 24, 1993

The above-captioned matter was heard as a contested case on July 7, 1992, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. By letter dated February 6, 1992, the complainant requested from the respondent access to certain case files in which the City of New London (hereinafter "City") was a party to litigation. The case files requested from the respondent consist of ten cases that were listed in an interdepartmental memorandum entitled "Report on Litigation" from the respondent to the City Council, dated January 29, 1992 (hereinafter "case files").

2. By reply letter dated February 20, 1992, the respondent informed the complainant that disclosure of the requested case files would violate the the attorney-client privilege and the Code of Professional Conduct for attorneys and referred the complainant to the courts where the cases to which the files relate were returned.

3. By letter dated February 25, 1992 and filed February 26, 1992, the complainant appealed the respondent's denial of access to the requested case files to the Commission.

4. Specifically, the complainant wishes to review legal briefs, bills, memoranda to City Council and all other records that he is entitled to under the Freedom of Information ("FOI") Act, contained in the case files.

5.

Docket #FIC 92-71 Page 2

5. Subsequent to this complaint, the individual serving as the respondent director of law died and was replaced by the current incumbent respondent who also is engaged in the private practice of law.

6. The current incumbent respondent maintains that as a private practioner of law, he is not a public agency and that the requested case files are not public records subject to disclosure under the FOI Act.

7. It is found that pursuant to the City charter the respondent acts as the head of the City's Department of Law and as chief legal advisor of, and attorney for, the City.

8. It is concluded that when acting in his capacity as New London's Director of Law, the current incumbent respondent is himself a City official and therefore a public agency within the meaning of 1-18a(a), G.S.

9. It is further concluded that the respondent as head of New London's Department of Law, is responsible for keeping and maintaining the department's records, including the requested case files, as required by 1-19(a), G.S., and for obtaining, on request for inspection or copying, all records to which the agency itself is legally entitled.

10. The respondent maintains that the requested case files are exempt from disclosure pursuant to 1-19(b)(4) and 1-19(b)(10), G.S.

11. Section 1-19(b)(4), G.S., exempts from disclosure:

"records pertaining 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."

12. The respondent claims that at the time of the complainant's request many of the cases to which the files in question relate were still pending.

13. It is concluded that the records contained in the requested case files which pertain to strategy or negotiations with respect to pending litigation are exempt from disclosure pursuant to 1-19(b)(4), G.S.

14. Section 1-19(b)(10), G.S., permits the nondisclosure of "communications privileged by the attorney-client relationship."

Docket #FIC 92-71 Page 3

15. It is concluded that those portions of the records contained in the requested case files which constitute communications privileged by the attorney-client relationship are exempt from disclosure pursuant to 1-19(b)(10), G.S.

16. The current incumbent respondent claims that not all of the requested case files are in his actual possession because some are located at the office of the former respondent and some may be in the possession of other attorneys to whom the former respondent delegated responsibility, on approval by the City Council. He further maintains that to require him to locate the requested case files and peruse them to ascertain whether exemptions to disclosure would apply, would be overly burdensome and time consuming.

17. It is concluded however, that all of the non-exempt records requested by the complainant, access to which the respondent is legally entitled, whether such records are in the possession of the current incumbent respondent, his predecessors or some other attorney appointed by the City, are public records within the meaning of 1-18a(d), G.S., and are subject to disclosure under 1-15(a) and 1-19(a), G.S. To hold otherwise would be to permit agencies to avoid disclosure of otherwise public records merely by transferring physical possession to another person.

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

1. The respondent shall forthwith provide the complainant with a copy of all records contained in the requested case files that are not exempt from disclosure by virtue of 1-19(b)(4) and 1-19(b)(10), G.S, as described in paragraphs 13 and 15, of the findings above.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 1993.

Debra L. Rembowski

Acting Clerk of the Commission

Docket #FIC 92-71 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:

Robert Fromer

281 Gardner Avenue, J4

New London, CT 06320

Thomas Londregan

New London Director of Law

c/o Conway, Londregan & McNamara, P.C.

38 Huntington Street

P.O. Box 1351

New London, CT 06320

Debra L. Rembowski

Acting Clerk of the Commission