FIC1999-557

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Connecticut Post Limited Partnership,
		Complainant
	against		Docket #FIC 1999-557
Legislative and Administrative Advisor 2, State of Connecticut, Department of Environmental Protection, Office of Legal Counsel; and State of Connecticut, Department of Environmental Protection, Office of Legal Counsel,
		Respondents	August 9, 2000

The above-captioned matter was heard as a contested case on February 1, 2000, 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 §1-200(1), G.S., [formerly §1-18a(1), G.S.].

2. By letter dated November 24, 1999 and filed on November 26, 1999, the complainant, appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying it access to ten (10) documents pertaining to the issue of an Indirect Source Permit (“ISP”) and the proposed Long Wharf Galleria Mall in New Haven (“Galleria Mall”).

3. It is found that sometime prior to, and again by letter dated October 28, 1999, the complainant requested that the respondents provide it with access to documents pertaining to the ISP and the Galleria Mall.

4. It is found that the respondents provided the complainant with certain documents; however, they denied the complainant access to ten (10) documents on the basis of the attorney-client privilege, following which the complainant timely filed this appeal.

5. At the hearing on this matter, the parties stipulated that they had narrowed the dispute between them to the following five (5) documents, which were submitted to the Commission, and an in camera review was conducted:

a. 6/21/99 e-mail memo from Denise Rodosevich, counsel, to Bill Menz of the Air Bureau;

b. 7/6/99 memo from Denise Rodosevich, counsel, to Carmine DiBattista with copies to Chris James, Ann Gobin, and Marty Booher, all of the Air Bureau;

c. 8/5/99 memo from Denise Rodosevich, counsel, to Arthur J. Rocque and Jane K. Stahl, Commissioner and Deputy Commissioner of DEP, with copies to Chris James and Marty Booher, both of the DEP;

d. 8/9/99 memo from Denise Rodosevich, counsel, to Arthur J. Rocque, Commissioner of DEP; and

e. 9/8/99 e-mail memo from Denise Rodosevich, counsel, to Arthur J. Rocque, Commissioner of DEP.

6. For identification purposes, the in camera documents have been designated IC# 1999-557-1, IC# 1999-557-3, IC# 1999-557-5, IC# 1999-557-7 and IC# 1999-557-9, respectively.

7. Section 1-200(5), G.S. [formerly §1-18a(5), G.S.] defines “public records or files” to mean:

"any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method."

8. Sec. 1-210(a), G.S., [formerly §1-19(a), G.S.], further provides:

"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."

9. It is concluded that the in camera documents are public records within the meaning of §§1-200(5), G.S. [formerly §1-18a(5), G.S.] and 1-210(a), G.S. [formerly §1-19(a), G.S.].

10. 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.”

11. 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).

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. DiLorento, supra.

13. It is found that IC#1999-557-1, IC# 1999-557-3, IC# 1999-557-5, IC# 1999-557-7 and IC# 1999-557-9, are confidential communications between attorney, in the capacity of legal adviser, and client, which communications pertain to legal advice sought by the client.

14. Consequently, it is concluded that IC#1999-557-1, IC# 1999-557-3, IC# 1999-557-5, IC# 1999-557-7 and IC# 1999-557-9, are privileged communications within the meaning of §1-210(b)(10), G.S. [formerly §1-19(b)(10), G.S.], and are therefore, exempt from public disclosure.

15. It is further concluded that the respondents did not violate §1-210(a), G.S. [formerly §1-19(a), G.S.] when they failed to provide the complainant with access to IC#1999-557-1, IC# 1999-557-3, IC# 1999-557-5, IC# 1999-557-7 and IC# 1999-557-9.

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

1. The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of

August 9, 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

and

c/o Atty. William S. Fish, Jr.

Tyler Cooper & Alcorn, LLP

CityPlace, 35th floor

Hartford, CT 06103

Legislative and Administrative Advisor 2, State of Connecticut, Department of Environmental Protection, Office of Legal Counsel; and State of Connecticut, Department of Environmental Protection, Office of Legal Counsel

c/o Atty. Krista E. Trousdale

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1999-557FD/mrb/08/10/00