The above-captioned matter was heard as a contested case on April 14, 1998, at which 
time the complainant and the respondents 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.   The respondents are public agencies within the meaning of §1-18a(1), G.S. 

	2.   By letter dated December 30, 1997, the complainant requested that the respondents 
provide her with access to all records regarding Mele v. Town of Simsbury, Sup. Ct. CV 5949, 
which were in the custody of the respondent town attorney.  It is found that, on January 6, 1998, 
the complainant granted the respondents an extension of time until January 14, 1998, to comply 
with such request.   

	3.   By letter dated January 14, 1998, the respondents informed the complainant that all 
public documents in the possession of the town attorney relating to the Eno Farms development, 
which is the subject of the litigation described in paragraph 2, above, were available for 
inspection.  The respondents denied access to other records responsive to the complainant’s 
request pursuant to the attorney-client privilege, the attorney work product privilege, the 
negotiation/strategy exception, and in reliance on the fact that disclosure would limit the 
respondents’ discovery rights in the litigation described in paragraph 2, above.    

	4.   By letter dated January 14, 1998, and filed on January 15, 1998 , the complainant 
appealed to the Commission, alleging that the respondents violated the Freedom of Information 
(“FOI”) Act by denying her access to requested records.  The complainant requested that the 
Commission impose a civil penalty upon the respondents.  

	5.   It is found that the requested records are public records within the meaning of §§1-
18a(5), G.S., and 1-19(a), G.S.

	6.   Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, 
all records maintained…by any public agency…shall be public 
records and every person shall have the right to inspect such 
records promptly during regular office hours….

	7.   The respondents submitted the subject records to the Commission for in-camera 
inspection, which records have been identified as in-camera document #s 1998-014-1 - 1998-
014-1356, inclusive.  

	8.   The respondents concede that the following in-camera document #s are non-exempt: 
1998-014-1, 2, 35-37, 47-75, 77-81, 84-98, 101, 104, 110-131, 140-141, 155A-183, 199-248, 
265-268, 271-274, 368-374, 379-413, 438-457, 469-636, 639-648, 652, 656-661, 664-671, 674-
752, 755, 761, 762, 764-765, 767-776, 795-839, 875-882, 886-914, 923, 925-928, 943-953, 955-
967, 975-978, 984-1006, 1014-1049, 1056-1061, 1065-1081, 1089-1136, 1140-1148, 1157-1173, 
1188-1220, 1237-1258A, 1270-1316, 1321-1322, and 1341-1352.  Accordingly, it is concluded 
that the respondents violated §1-19(a), G.S., by failing to promptly provide the complainant with 
access to such records.  

	9.   The respondents contend that §1-19(b)(10), G.S., exempts the following in-camera 
document #s from mandatory disclosure:  1998-014-6-12, 38-44, 82, 83, 99, 100, 102, 103, 105-
109, 132-139, 142-149, 184A-184V, 188-192, 250-253, 254- 260, 269-270, 310-313, 339-344, 
375, 376, 377-378, 414-437, 458-461, 462-464, 465-468, 638, 649-651, 653-655, 662-663, 753-
754, 756-760, 763, 766, 777-780, 783-787, 790-791, 840-849, 850-859, 860-874, 921-922, 929-
940, 971-974, 1007-1013, 1053-1053A, 1062-1063, 1221-1222, 1259-1268, 1317-1320, and 
1335-1340.  

	10.  Section 1-19(b)(10), G.S., provides that nothing in the FOI Act shall be construed to 
require disclosure of “communications privileged by the attorney-client relationship….”

	11.  The exemption for attorney-client privileged communications contained in §1-
19(b)(10), G.S., is limited to the following circumstances in accordance with established 
Connecticut law:

“Where legal advice of any kind is sought from a professional legal adviser in his 
capacity as such, the communications relating to that purpose, made in confidence 
by the client, are at his instance permanently protected from disclosure by himself 
or by the legal adviser, except the protection may be waived.”

Lafaive v. DiLoreto, 2 Conn. App. 58, 65 (1984), cert. denied 194 Conn. 801 (1984).  

	12.  The attorney-client privilege protects communications between client and attorney, 
when made in confidence for the purpose of seeking or giving legal advice.  Ullmann v. State, 
230 Conn. 698, 711 (1994).  It is strictly construed because it “tends to prevent a full disclosure 
of the truth. . . .”  Id. at 710.   The privilege is waived when statements of the communication are 
made to third parties. Id. at 711; see LaFaive v. DiLoreto, supra.

	13.  It is found that the following in-camera document #s consist of opinions written by 
the respondents’ attorneys to the respondents in response to various requests for legal advice and 
communications from the respondents to their attorneys seeking legal advice: 1998-014-8, 9, 10, 
40, 41, 42, 43, 82, 83, 99, 100, 102, 103, 105, 106, 108 (handwritten notes only), 109 
(handwritten notes only), 132-139, 142-149, 184A-184G, 184I, 184K-L, 184Q-R, 188-192, 254-
255, 260, 269-270, 310-313, 339-344, 375-378, 414-437, 458-468, 638, 649-651, 653-655, 662-
663, 753-754, 756-760, 763, 766, 777-778, 783-784, 786-787, 790-791, 840-849, 850-859, 860-
867, 870, 872-873, 921-922, 971-974, 1007-1011, 1053-1053A, 1062-1063, 1221-1222, 1259-
1268, and 1317-1318.  It is further found such records are communications between attorney, in 
the capacity of legal adviser, and client, and contain legal advice sought by the client and 
provided in confidence.

	14.  The complainant contends that disclosure of the contents of certain records to 
subsequent attorneys of the respondents acts as a waiver of the attorney-client privilege.  It is 
found, however, that such disclosure does not waive such privilege.  

	15.  It is concluded that the records described in paragraph 13, above, are privileged 
communications within the meaning of §1-19(b)(10), G.S.  It is further concluded that such 
records are exempt from disclosure by virtue of such statute and that the respondents did not 
violate §1-19(a), G.S., when they failed to provide the complainant with access thereto. 

	16.  It is found that certain of the in-camera document #s do not consist of 
communications between client and attorney.  It is further found that certain of the in-camera 
document #s consist of communications between the respondents and their several attorneys but 
that such communications were either written to, received from, or copied to third parties.  It is 
further found that such records, which are herein set forth, are not communications made in 
confidence between the respondents and their attorneys: 1998-014-6, 7, 11,12, 38, 39, 44, 107, 
108 (except handwritten notes), 109 (except handwritten notes), 184H, 184J, 184M, 184N-P, 
184S-V, 256-259, 779-780, 785, 868-869, 871, 874, 929-940, 1012-1013, 1319-1320, and 1335-
1340.

	17.  It is concluded that the records described in paragraph 16, above, are not privileged 
communications within the meaning of §1-19(b)(10), G.S.  Therefore, such records are not 
exempt from mandatory disclosure pursuant to such statute. 

	18.  It is further concluded that the respondents violated §1-19(a), G.S., by failing to 
provide the complainant with access to the following in-camera documents #s:  1998-014-6, 7, 
11,12, 38, 39, 44, 184H, 184J, 184M, 184N-P, 184S-V, 256-259, 779-780, 785, 868-869, 871, 
874,  and 1319-1320.

	19.  With respect to in camera document #s 1998-014-107, 108 (except handwritten 
notes), 109 (except handwritten notes), 929-940, 1012-1013, and 1335-1340, the respondents 
also contend that other exemptions apply.  Accordingly, such records will be analyzed under 
such claimed exemptions.  Records found to be exempt from disclosure as described in 
paragraphs 13 and 15, above, will not be analyzed under separate exemptions.   

	20.  The respondents contend that §1-19(b)(4), G.S., exempts the following in-camera 
document #s from mandatory disclosure:  1998-014-193-198, 883-885, 915-917, 918-920, 924, 
941-942, 968-970, 979-983, 1012-1013 1054-1055, 1064, 1084-1088, 1137, 1138-1139 1149-
1156, 1174-1187,1223-1236, 1269, 1323-1340, and 1353-1356.    

	21.   Section 1-19(b)(4), G.S., provides that nothing in the FOI Act shall be construed to 
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. . . .”

	22.  In this regard, §1-18a(9), G.S., defines “pending litigation,” as:

“(A)  a written notice to an agency which sets forth a demand for legal relief or 
which asserts a legal right stating the intention to institute an action before a court 
if such relief or right is not granted by the agency;  (B)  the service of a complaint 
against an agency returnable to a court which seeks to enforce or implement legal 
relief or a legal right;  or (C)  the agency's consideration of action to enforce or 
implement legal relief or a legal right.”

	23.  It is found that the parties to this action are involved in pending litigation within the 
meaning of §1-18a(9), G.S.

	24.   It is also found that the following in-camera document # s constitute records of 
strategy or negotiations pertaining to the pending litigation referred to in paragraph 23, above, 
within the meaning of §1-19(b)(4), G.S., and are therefore exempt from disclosure: 1998-014-
193-198, 883-885, 915-917, 918-920, 924, 968-970, 979-983, 1012-1013, 1054-1055, 1064, 
1084-1088, 1137, 1138-1139, 1149-1156, 1174-1187, 1223-1224, 1269, 1323-1340, and 1353-
1356.  It is therefore concluded that the respondents did not violate §1-19(a), G.S., by failing to 
provide the complainant with access to such documents.

	25.  It is also found that in-camera document #s 1998-014-1225-1236 do not constitute 
records of strategy or negotiations pertaining to pending litigation, within the meaning of §1-
19(b)(4), G.S., and are therefore not exempt from disclosure. 

	26.  It is concluded that the respondents violated §1-19(a), G.S., by failing to provide the 
complainant with access to in-camera documents #s 1998-014-1225-1236.  

	27.  Records found to be exempt from disclosure as described in paragraphs 15 and 24, 
above, will not be analyzed under the final claimed exemption.   

	28.   The respondents contend that the attorney work product rule and §1-19b(b)(1), G.S., 
exempts the following in-camera document #s from mandatory disclosure:  1998-014-3, 4, 5, 13-
34, 45-46, 76, 107, 108-109 (text only), 150-154, 185-187, 249-253, 261-264, 275-309, 314-338, 
345-367, 637, 672-673, 781-782, 788-789, 792-794, 929-942, 954, 1050-1052, and 1082-1083.

	29.  It is concluded that the attorney work product rule does not constitute an exemption 
under the FOI Act and that therefore such rule does not provide a basis to withhold the records at 
issue in the context of an appeal to this Commission.  

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

[n]othing in the [FOI] Act shall be deemed in any manner 
to…affect the status of judicial records as they existed prior to 
October 1, 1975, nor to limit the rights of litigants, including 
parties to administrative proceedings, under the laws of discovery 
of this state….

	31.  It is found that, both at the time of the complainant’s request and at the time of the 
hearing on this matter, the complainant was counsel for the plaintiff in the litigation described in 
paragraph 2, above, and that the respondent town is a party to such litigation.  It is further found 
that the complainant made a request for production of the same records at issue in this case in 
the context of the litigation described in paragraph 2, above, and that motions relating to the 
complainant’s discovery request are pending before the superior court.    

	32.  The respondents contend that the pending discovery request, as described in 
paragraph 31, above, necessarily requires a finding that an order of disclosure by the 
Commission in this case would limit the respondents’ rights in litigation, and that therefore such 
disclosure order cannot issue.  However, a pending discovery request does not preclude a 
disclosure order for the same records under the FOI Act.  Chief of Police, Hartford Police 
Department v. Freedom of Information Commission, No. CV96-0561310, Sup. Ct., Judicial 
District of Hartford/New Britain (Aronson, J.) (July 30, 1997).  Rather, the issue for the 
Commission in such a case is to determine whether disclosure would limit the rights of litigants 
in the pending action.  

	33.  It is found that the respondents did not prove that disclosure would limit their rights 
in the litigation described in paragraph 2, above.  Accordingly, it is concluded that §1-19b(b)(1), 
G.S., does not provide a basis for withholding the records described in paragraph 28, above, and 
it is further concluded that the respondents violated §1-19(a), G.S., by failing to promptly 
provide the complainant with access to such records.  

	34.  The complainant contends that a September 8, 1997 letter of the Connecticut 
Attorney General compels the respondents to disclose the requested records to her.  However, 
since the Commission has no authority to enforce an order of the Attorney General, it shall not 
comment upon the contents of such letter.   

	35.   Finally, the Commission in its discretion declines to impose civil penalties in this 
matter.

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

	1.  If they have not already done so, the respondents shall forthwith provide the 
complainant with access to the records described in paragraphs 8, 18, 26 and 28 of the findings, 
above.

	2.  Henceforth, the respondents shall strictly comply with the provisions of §1-19(a), G.S. 


	Approved by Order of the Freedom of Information Commission at its regular meeting of 
August 12, 1998.

_________________________
Doris V. Luetjen
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:

Huguet P.C. Pameijer
10 Highwood
Simsbury, CT 06070

Mary A. Glassman, First Selectman, Town of Simsbury; and Town of Simsbury
c/o Atty. Moy N. Ogilvie
Cummings & Lockwood
City Place I, 36th Floor
Hartford, CT 06103

__________________________
Doris V. Luetjen
Acting Clerk of the Commission

FIC1998-014/FD/tcg/08181998