FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Robert Fromer,

 

Complainant

 

 

against

Docket #FIC 2000-250

Arthur Rocque, Jr., Commissioner, State of 
Connecticut, Department of Environmental
Protection; Anne Rapkin, Chief Legal Counsel,
State of Connecticut, Department of 
Environmental Protection; and Jane Stahl,
Deputy Commissioner, State of Connecticut,
Department of Environmental Protection,

 

 

Respondents

August 9, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on June 13, 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.

 

2.      By letter dated March 28, 2000 to the respondent commissioner and the respondent chief legal counsel, the complainant requested copies of “any and all correspondence and/or memoranda prepared by the respondent chief legal counsel concerning (a) the application of the State of Connecticut Department of Economic and Community Development for an exemption from floodplain management certification in the Fort Trumbull Municipal Development Plan area of New London, Connecticut; (b) the proceedings held before the Commissioner, State of Connecticut Department of Environmental Protection and (c) the final decision of the DEP Commissioner.”

 

3.      By letter dated March 30, 2000, the respondent deputy commissioner responded to the complainant’s request by informing the complainant that a search would be conducted to locate the requested records and that because some of the records responsive to his request were prepared by legal counsel, they had to be reviewed to determine if disclosure was appropriate.

4.      It is found that by letter dated May 5, 2000, the respondent deputy commissioner informed the complainant that there were three responsive documents, two of which would not be disclosed because they were exempt from disclosure as attorney client privileged communications pursuant to §1-210(b)(10), G.S., and strategy with respect to litigation pursuant to §1-210(b)(4), G.S.   It is found that the respondents provided the third document in redacted form to protect information not subject to disclosure pursuant to the attorney client privilege communications exemption found in §1-210(b)(10), G.S.

 

5.      By letter dated May 18, 2000, and filed on May 19, 2000, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him access to inspect or copy the requested records.  The complainant requested the imposition of a civil penalty against the respondents.

 

6.      Section 1-210(a), G.S., provides in relevant part that:

 

“[e]xcept 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 receive a copy of such records in accordance with the provisions of section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”

 

            7.      Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

8.      It is found that the requested records are public records within the meaning of §1-210(a), G.S.

 

9.      It is found that there are only three records responsive to the complainant’s request, which records have been submitted to the Commission for in-camera inspection.  The records have been identified as in-camera document #s FIC2000-250-1A through 2000-250-6A; in-camera document #s FIC2000-250-1B through 2000-250-5B; and in-camera document #FIC2000-250-1C.

 

10.  The respondents contend that §1-210(b)(10), G.S., exempts in-camera document #s FIC2000-250-1A through 2000-250-6A; in-camera document #s FIC2000-250-1B through 2000-250-5B; and the redacted portions of in-camera document # FIC2000-250-1C from mandatory disclosure.

 

11.  Section 1-210(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 . . . .”

 

12.  The exemption for attorney-client privileged communications contained in §1-210(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 advisor, except the protection may be waived.”  Lafaive v. Diloreto, 2 Conn. App. 58, 65 (1984), 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, 240 Conn. 698, 711 (1994).  The privilege is waived when statements of the communications are made to third parties. Id. at 711; see LaFaive v. DiLoretom, supra.

`

14.  It is found that in-camera document #s FIC2000-250-1A through 2000-250-6A, in-camera document #s FIC2000-250-1B through 2000-250-5B, and in-camera document # FIC2000-250-1C consist of opinions or advice written by the respondents’ attorneys to the respondents and that such records are communications between attorney, in the capacity of legal advisor, and client, and contain legal advice sought by the client and provided in confidence.

 

15.  The complainant contends that disclosure of the contents of certain records to other attorneys, and to other persons who were not a part of the respondent chief legal counsel’s office, acts as a waiver of the attorney-client privilege.

 

16.  It is found that the respondent chief legal counsel, whose office serves as counsel for the respondent department, wrote the original draft opinion, which is in-camera document #s FIC2000-250-1A through 2000-250-6A, and shared it for editing purposes with the other attorneys in her office.  From their comments and corrections the second draft was written which is in-camera document #s FIC2000-250-1B through 2000-250-5B.

 

17.  It is found that there is nothing in the law to support a finding that sharing draft opinions with co-counsel in the same office or department acts as a waiver to the attorney-client privilege. 

 

18.  It is found that in-camera document #s FIC2000-250-1B through 2000-250-5B was shared with persons that are not in the respondent chief legal counsel’s office, but work in other offices of the respondent department.

19.  It is found, however, that the staff of the respondent department, in their official capacities at the department, are not only clients of the respondent chief legal counsel and her office, but were parties to the case about which in-camera document #s FIC2000-250-1B through 2000-250-5B was written.  

 

20.  It is found, therefore that the records were not shared with a third party and that the privilege was not waived.

 

21.  It is concluded that in-camera document #s FIC2000-250-1A through 2000-250-6A, in-camera document #s FIC2000-250-1B through 2000-250-5B and in-camera document # FIC2000-250-1C are privileged communications within the meaning of §1-210(b)(10), G.S.  It is further concluded that such records are exempt from mandatory disclosure by virtue of such statute and that the respondents did not violate §1-210(a), G.S., when they denied the complainant’s request for access to inspect or copy the records.

 

22.  The respondent also argued that the records are exempt from disclosure pursuant to  §1-210(b)(4), G.S., because they involve strategy with respect to pending claims and litigation.  However, having found that the records are permissibly exempt pursuant to §1-210(b)(10), G.S., it is not necessary to address the respondents’ second argument. 

 

23.  The complainant’s request for the imposition of a civil penalty is denied.



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

 

            1.  The complainant is hereby 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:

 

 

Robert Fromer

PO Box 697

New London, CT  06320

 

 

Arthur Rocque, Jr., Commissioner, State of Connecticut, Department of Environmental

Protection; Anne Rapkin, Chief Legal Counsel, State of Connecticut, Department of

Environmental Protection; and Jane Stahl, Deputy Commissioner, State of Connecticut,

Department of Environmental Protection

c/o Atty. Sharon A. Scully

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT  06141-0120

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

 

FIC2000-250FD/mrb/08/10/00