FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Sharlene R. Stamper,
Complainant
against Docket
#FIC 94-342
Canterbury Board of
Selectmen,
Respondent September 27, 1995
The above-captioned matter was first heard as a
contested case on April 27, 1995, at which time the complainant and the
respondent Canterbury board of selectmen appeared, stipulated to certain facts
and presented testimony, exhibits and argument on the complaint. A Report of Hearing Officer was considered
by the Commission at its August 9, 1995 meeting, at which time the complainant
appeared. The Commissioners at that
time voted to continue the matter and to reopen the hearing to consider the
imposition of a civil penalty and an order for a workshop. On August 23, 1995 the Commission issued a
Notice of Civil Penalty and Workshop Hearing and Order to Show Cause, naming,
for the first time, attorney Richard S. Cody as a respondent. The matter was then heard as a contested
case on September 6, 1995, at which time the complainant and both respondents
appeared, stipulated to certain facts, and presented testimony and argument on
the complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1. The
respondent Canterbury board of selectmen is a public agency within the meaning
of 1-18a(a), G.S.
2. By
letter of complaint filed September 29, 1994, the complainant appealed to the
Commission, alleging that the respondent board of selectmen failed to provide
her with most of the records she had requested on August 25, 1994, and
requesting that the Commission conduct an educational workshop for the benefit
of the respondent.
3. By
supplemental letter of complaint filed December 1, 1994, the complainant
additionally alleged that, at the direction of the town of Canterbury planning
and zoning commission's attorney, she was not permitted to review the requested
records until she had paid for them, and that numerous requested records were
missing from the documents she ultimately saw.
She requested that the Commission impose civil penalties against the
attorney.
Docket #FIC 94-342 Page
2
4. It
is found that the complainant made a written request on August 25, 1994 for
records of all payments out of certain budgeted line items, pertaining to legal
fees and planning and zoning engineering services.
5. It
is found that the respondent provided some records on September 6, 1994.
6. It
is found that the respondent by letter dated October 13, 1994 indicated that
copies of the requested bills had been made, and requesting $125.50 payment for
the 251 pages.
7. It
is found that the complainant then called the respondent's office on November
1, 1994 and asked for an opportunity to review the requested records.
8. It
is found that the respondent at that time denied the complainant's request to
inspect the records until she had paid for the copies.
9. Section
1-15, G.S., provides in relevant part:
(a) Any person applying in writing
shall receive, promptly upon request, a plain or certified copy of any public
record. The fee for any copy provided
[by a municipal agency] shall not exceed fifty cents per page. ...
...
(c)
A public agency may require the prepayment of any fee required or
permitted under this chapter if such fee is estimated to be ten dollars or
more. ...
10. Section
1-19(a), G.S., provides in relevant part:
Except as otherwise provided by any
federal law or state statute, all records maintained or kept on file by any
public agency, whether or not such records are required by any law or by any
rule or regulation, shall be public records and every person shall have the
right to inspect such records promptly during regular office or business hours
or to receive a copy of such records in accordance with the provisions of
section 1-15.
11. It
is concluded that, although 1-15(a), G.S., permits the respondent to
require the complainant to prepay to receive copies of records, 1-19(a),
G.S., also requires the respondent to permit the complainant to review the
records without charge, provided the complainant does not take possession of
the copies.
Docket #FIC 94-342 Page
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12. It
is concluded that the respondent violated 1-19(a), G.S., by conditioning
the complainant's right to promptly inspect the requested records upon
prepayment of the fee for the copies.
13. The
complainant also maintains that the records, which she ultimately reviewed, are
not completely responsive to her request.
14. In
particular, the complainant maintains that the records do not reflect bills
concerning two particular matters in which the town received legal
representation in 1993 and 1994.
15. Further,
the complainant maintains that the copies made available to her were redundant,
containing multiple copies of the same records.
16. The
complainant additionally maintains that the records made available to her fail
to identify which bills were submitted for which matters.
17. It
is found that the complainant is associated with a group known as People Rights
in a Clean Environment ("PRICE").
18. It
is found that the respondent, at the direction of the planning and zoning
commission's attorney, redacted both the dollar amount and the entire
descriptive billing entry from any records made available to the complainant
that concerned litigation involving PRICE.
19. The
respondent maintains that the redactions were permitted because to disclose the
full bills would betray client confidences and reveal litigation strategy.
20. Section
1-19(b)(10), G.S., provides that the FOI Act does not require disclosure of
communications privileged by the attorney-client relationship.
21. It
is found that the respondent failed to prove that the requested bills contain
client confidences.
22. Section
1-19(b)(4), G.S., provides that the FOI Act does not require disclosure of
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.
23. The
respondent argues that litigation often is dormant for periods of time, and
that disclosing the billing records would show when there was activity and
therefore disclose to opposing parties that something was coming in a dormant
period, and give them an opportunity to brace themselves.
Docket #FIC 94-342 Page
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24. It
is found that, at the time of the complainant's request, some of the bills at
issue were up to two years old.
25. It
is found that the respondent failed to prove which of the redacted bills, at
the time of the complainant's request, were sufficiently recent to give the
kind of advantage claimed in paragraph 23, above.
26. It
is further found that a record that discloses that an attorney worked on a
case, generating a certain amount billed, is not in itself a record pertaining
to strategy and negotiations.
27. It
is therefore concluded that the respondent violated 1-19(a), G.S., by
failing to allow the complainant to inspect unredacted copies of bills for
legal services.
28. At
the September 6, 1995 reopened hearing on this matter, the attorney, Richard S.
Cody appeared to oppose the imposition of a civil penalty against him, and the
respondent Canterbury board of selectmen argued against the ordering of an
educational workshop.
29. Specifically,
the attorney argued that since he had never been made a party to the
proceedings before the August 23, 1995 Notice of Civil Penalty and Workshop
Hearing and Order to Show Cause, and because he had received no notice from the
Commission that any complaint was pending against him until that August 23,
1995 Notice, principles of due process and fundamental fairness required that
no issue of civil penalties against him could be considered until he had notice
of the complaint against him, and a fair opportunity to present evidence and
argument and to cross examine witnesses that had testified at the original
April 27, 1995 evidentiary hearing.
30. It
is found that although the complainant herself named the attorney as a
respondent in her complaint filed September 29, 1994, the Commission did not
name him as a respondent in any notice or proceeding prior to the August 23,
1995 Notice of Civil Penalty and Workshop Hearing and Order to Show Cause.
31. It
is specifically found that the attorney was not named by the Commission as a
respondent in the hearing held on April 27, 1995.
32. It
is also found that the attorney was not named by the Commission as a respondent
in the Report of Hearing Officer issued by the Commission on July 26, 1995 and
considered at the Commission's August 9, 1995 meeting.
Docket #FIC 94-342 Page
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33. It
is additionally found that although the attorney testified at the April 27,
1995 hearing, he appeared neither on his own behalf nor on behalf of any other
party, and reasonably did not consider himself to be a party to the proceeding.
34. It
is further found that the attorney reasonably did not appear at the August 9,
1995 Commission meeting, having received no notice that he was a party to that
proceeding.
35. It
is therefore found that the attorney had no opportunity to cross examine
witnesses, or to present testimony, evidence or argument on his own behalf, at
either the Commission's April 27, 1995 evidentiary hearing, or the Commission's
August 9, 1995 meeting.
36. It
is therefore concluded fundamental fairness precludes the Commission from using
evidence adduced at the April 27, 1995 evidentiary hearing, or representations
by the complainant at the August 9, 1995 meeting, in making any findings or
conclusions concerning the attorney.
37. Considering
the entire record of these proceedings, the Commission in its discretion
declines to reopen and re-conduct the initial evidentiary hearing in this
matter, and concludes that the attorney should not now be named as a respondent
in the case.
38. In
light of the conclusion reached in paragraph 37, above, the Commission
concludes that it is unnecessary to address the attorney's additional claim
that he is not a public agency and that the Commission therefore has no
jurisdiction over him.
39. Concerning
the complainant's request for an educational workshop to be conducted for the
respondent Canterbury board of selectmen, the Commission in its discretion
declines to order such a workshop, considering the limited nature of the
violation in this case.
40. However,
the Commission also wishes to advise the respondent that the Commission has
repeatedly determined that, absent proof of specifically exempt material,
attorney billings in general, and billing amounts in particular, are not
categorically exempt from disclosure pursuant to 1-19(b)(4), G.S. See, for example, New Haven v. FOIC, 205
Conn. 767 (1988).
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
Docket #FIC 94-342 Page
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1. The
respondent shall forthwith make available to the complainant for her inspection
unredacted copies of the requested bills.
2. Henceforth
the respondent shall strictly comply with the requirements of 1-19(a),
G.S.
Approved by Order of the
Freedom of Information Commission at its regular meeting of September 27, 1995.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 94-342 Page
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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:
Ms. Sharlene R. Stamper
189 Butts Bridge Road
Canterbury, CT 06331
Canterbury Board of Selectmen
c/o John D. Boland, Esq.
Boland, St. Onge &
Brouillard
211 Kennedy Drive
P.O. Box 550
Putnam, CT 06260
Richard S. Cody
c/o Kenneth G. Williams, Esq.
Gordon, Muir & Foley
10 Columbus Boulevard
Hartford, CT 06106
Elizabeth A. Leifert
Acting Clerk of the Commission