FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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| Connecticut Post Limited Partnership, |
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Complainant |
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against |
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Docket #FIC 1999-505 |
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Office of the Corporation Counsel, City |
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Respondents |
April 26, 2000 |
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The above-captioned matter was heard as a contested case on December 29, 1999, at which time the complainant and the respondents appeared, 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 respondent corporation counsel is a public agency within the meaning of §1-200(1), G.S. [formerly §1-18a(1), G.S.].
2. It is found that by letter dated October 5, 1999, directed to the Corporation Counsel of the city of New Haven (city), the complainant requested that the city provide it with the following records concerning the Long Wharf Galleria (a/k/a Long Wharf Mall) (hereinafter “requested records”):
i) all contracts, correspondence, analysis or other documents created or received after April 1, 1999 concerning the Draft Finding of No Significant Impact concerning the proposed Long Wharf Galleria;
ii) all contracts, correspondence or other documents created or received since April 1, 1999 concerning: a) any air quality or other environmental analysis regarding the proposed Long Wharf Galleria, b) any traffic study concerning the proposed Long Wharf Galleria, c) any study of the impact of the Long Wharf Galleria on downtown New Haven and d) any other issue raised in the Draft Finding of No Significant Impact;
iii) all policies, analysis or other documents concerning issues or impacts to be considered when determining whether an environmental analysis under the Connecticut Environmental Policy Act may proceed by Finding of No Significant Impact or Environmental Impact Evaluation; and
iv. all communications between the city and the Department of Economic and Community Development or the Office of Policy and Management regarding the draft Finding of No Significant Impact.
3. It is found that the complainant renewed its request to the respondent corporation counsel by letters dated October 15 and 21, 1999. The October 21, 1999 request further requested:
a copy of the signed development agreement for the proposed Galleria.
4. Having failed to receive the
requested records, the complainant, by letter dated October 28, 1999 and filed
with the Commission on October 29, 1999, appealed to the Commission alleging
that the respondent corporation counsel violated
the Freedom of Information (“FOI”) Act by denying it access to the
requested records.
5. With respect to the records request, as described in paragraph 3, above, at the hearing on this matter, the respondent corporation counsel provided the complainant with a copy of the signed agreement, and the complainant indicated to the Commission that such records request is no longer at issue in this case.
6. With respect to the records request, as described in paragraph 2, above, it is found that the complainant essentially wants access to a) records that were a part of the Department of Economic and Community Development (“DECD”) proceeding/hearing which closed May 7, 1999, which were generated as of April 1, 1999, and which the complainant has not yet had access to, and b) records, not a part of the DECD record.
7. At the hearing in this matter, the respondent corporation counsel indicated that there were no records created or received since April 1, 1999 that would be responsive to the complainant’s request, as described in paragraphs 2 and 6, above. However, it is found that there are records responsive to such request, which the respondent corporation counsel has not provided to the complainant, but which the complainant was able to obtain from a source other than from the respondent corporation counsel. Specifically, there is an August 9, 1999 letter from Sal Brancati to the Commissioner of the DECD and the Secretary of the Office of Policy and Management (“OPM”), and a letter dated September 1, 1999 from OPM to Brancati.
8. It is therefore concluded that the respondent corporation counsel violated §1-210(a), G.S., when he failed to provide the complainant with the August 9 and September 1, 1999 letters, described in paragraph 7, above.
9. It is also found that a further, more extensive, and diligent search is obviously required, in light of the fact that the complainant was able to locate records which the respondent corporation counsel was unable to.
10. At the hearing on this matter, the respondent corporation counsel also agreed to provide to the complainant, records not technically falling within the scope of the complainant’s request at issue in this case, specifically, records that were created after the complainant’s records request dated October 5, 1999, through the date of the hearing in this case, with the exception of two records, which the respondent corporation counsel claims are exempt from disclosure pursuant to the attorney-client privilege as set forth at §1-210(b)(10), G.S. [formerly §1-19(b)(10), G.S.]. Those two records were provided to the Commission for an in camera inspection and have been marked for identification purposes as IC 1999-505-1 and IC 1999-505-2.
11. Section 1-210(b)(10), G.S., (formerly §1-19(b)(10), G.S.), permits the nondisclosure of: “[c]ommunications privileged by the attorney-client relationship.”
12. The exemption for attorney-client privileged communications contained in §1-210(b)(10), G.S., (formerly §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 cert. denied, 194 Conn. 801 (1984).
13. 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. DiLorento, supra.
14. It is found that IC 1999-505-1 and IC 1999-505-2 are not confidential communications between attorney and client in the context of seeking or giving legal advice.
15. Consequently, it is concluded that IC 1999-505-1 and IC 1999-505-2 are not privileged communications within the meaning of the attorney-client privilege as set forth at §1-210(b)(10), G.S., (formerly §1-19(b)(10), G.S.), and are therefore, not exempt from disclosure, and should be made available to the complainant.
16. The respondent corporation counsel also claims that IC 1999-505-2 is exempt from disclosure because “it is in draft form.” The Commission finds that the respondent corporation counsel has failed to prove that such document is exempt from disclosure pursuant to federal law or state statute as required by §1-210(a), G.S. [formerly §1-19(a), G.S.] which 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 1-212.
17. Finally, with respect to the respondent corporation counsel’s November 8, 1999 letter to the complainant, written in response to the complainant’s October 5, 1999 request at issue in this case, the Commission notes its concern that such response is confusing and misleading. Such response suggests that records, responsive to paragraph 3 of the complainant’s October 5, 1999 request, existed at the time of the writing of the November 8, 1999 letter, and that the respondent corporation counsel, as justification for not releasing such records, was claiming the attorney-client privilege exemption. However, at the hearing on this matter, the respondent corporation counsel testified that no such records exist, and neither did they exist at the time of the writing of the November 8, 1999 letter. At best, the Commission must conclude that the respondent corporation counsel asserted a claim of privilege without first conducting a diligent and thorough search of its records to determine whether records in fact existed, and at worst, that the respondent corporation counsel asserted a claim of privilege for records that it knew it did not have.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent corporation counsel shall conduct a diligent and extensive search of the records of the appropriate city agencies involved in the Galleria matter, to determine whether records, not yet provided to the complainant, that are responsive to the request as described in paragraphs 2 and 6 of the findings, above, exist. If such records exist, those records should be immediately made available to the complainant along with an affidavit attesting to the fact that such search was conducted and that the records being made available are the only ones that exist. If no records exist, the respondent corporation counsel shall provide the complainant with an affidavit attesting to that fact.
2. In an attempt to avoid future complaints, the parties have agreed to work together to establish a procedure satisfactory to address both parties’ FOI rights and responsibilities with respect to handling future FOI requests concerning the Galleria. The Commission applauds the parties in this regard.
Approved by Order of the Freedom of Information Commission at its regular meeting of
April 26, 2000.
_________________________
Melanie R. Balfour
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:
Connecticut Post Limited Partnership
c/o Atty.
Ronald J. Cohen
Tyler Cooper
& Alcorn, LLP
205 Church
Street, PO Box 1936
New Haven, CT
06509-1910
Atty. William
S. Fish, Jr.
Tyler Cooper & Alcorn, LLP
Office of the Corporation Counsel, City of New Haven; and City of New Haven
c/o Atty. Thayer Baldwin, Jr.
Corporation Counsel
165 Church Street
New Haven, CT 06510
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-505FD/mrb/04/28/00