FIC2000-211

The above-captioned matter was heard as a contested case on June 5, 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:

2. It is found that by letter dated April 13, 2000, the complainant requested that the respondents provide him with access to the following, (hereinafter “requested records”):

a. the entire investigation file of the Department of Health of my complaint in behalf of the family and Estate of Londell King against American Medical Response (“AMR”);

b. the compliance, if any, of AMR to provisions of the Voluntary Consent Agreement entered into with the Department of Health and AMR on March 3, 2000; and

c. all communications between the Department of Health and the Office of the Attorney General concerning the complaint against AMR, referenced in 2a, above.

The complainant also indicated in his request that with respect to the records described in paragraph 2a, above, “I am seeking all of the material which was labeled ‘strategy and negotiations’ to the Freedom of Information Commission.”

3. It is found that the respondents received the request on April 18, 2000 and acknowledged same by letter dated April 19, 2000.

4. However, having failed to receive the requested records, the complainant, by letter dated April 28, 2000 and filed on May 3, 2000, appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him access to the requested records.

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.

6. It is found that the respondents maintain records that are responsive to the complainant’s request, and such records are “public records” within the meaning of §1-210(a), G.S.

7. With respect to the request as described in paragraph 2a, above, it is found that by letter dated May 15, 2000, the respondents provided the complainant with certain records, however, other records exist that were not provided. The records not provided are at issue in this case. Specifically, it is found that the records at issue are certain in camera records submitted to the Commission for in camera review in contested case docket #FIC 1999-494, Burton M. Weinstein v. Assistant Attorney General, State of Connecticut, Office of the Attorney General; State of Connecticut, Office of the Attorney General; Public Health Services Manager, State of Connecticut, Department of Public Health, Health Systems Regulation Division; and State of Connecticut, Department of Public Health, Health Systems Regulation Division, (Notice of Final Decision dated May 18, 2000) (hereinafter “FIC 1999-494”). The in camera records are IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S.

8. The Commission takes administrative notice of the final decision in FIC 1999-494.

9. In FIC 1999-494, the Commission reviewed in camera IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S to determine whether such records were exempt from disclosure pursuant to §1-210(b)(4) G.S., the exemption that permits the non-disclosure of “records pertaining to strategy and negations 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.”

11. It is found that the Department of Public Health (hereinafter “DPH”) and AMR entered into a Voluntary Consent Agreement on March 3, 2000 (hereinafter “agreement”). The complainant contends that in light of the agreement, and since the respondents are no longer claiming that IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S are exempt from disclosure pursuant to §1-210(b)(4), G.S., he is entitled to access to such records. The respondents contend that such records were provided to the complainant by letter dated May 15, 2000.

12. To clarify whether the complainant received all of the records identified as IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S, the Hearing Officer requested that the respondents review their files, and report their findings to the Commission.

13. Following their review, the respondents informed the Commission by letter dated June 12, 2000, that 3 documents that were a part of IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S had not been provided to the complainant. Specifically, the respondents indicated that, “Not all of the documents … that were previously marked for in camera review in FIC#1999-494 as O, Q and S were part of the investigative file. Exhibits Q and S included documents found in a division manager’s file. With the exception of a cover memo, all of Q was in the investigative file and has already been provided to [the complainant]” and “Exhibit O was also previously provided to [the complainant].”

14. The respondents provided the complainant with a copy of the 3 documents described in paragraph 13, above, with a copy of their June 12, 2000 letter.

15. The respondents contend that the 3 documents described in paragraphs 13 and 14, above, had not been previously provided to the complainant because in their view those documents were not a part of the complainant’s request at issue in this case.

16. The respondents further contend in their June 12, 2000 letter that the request at issue in this case involves only the investigative file while the complainant’s previous request was viewed as a much broader, agency-wide request.

17. It is found however, that both the request in FIC 1999-494, and in this case were for the entire investigation file. It is also found that IC# FIC 1999-494-O, IC#1999-494-Q and IC#1999-494-S were submitted by the respondents for in camera inspection in FIC 1999-494, as documents responsive to the complainant’s request for the investigation file.

18. It is therefore found that the 3 documents at issue are responsive to the complainant’s request in this case for records “labeled ‘strategy and negotiations’ to the Freedom of Information Commission.” It is concluded that the 3 documents should have been provided to the complainant as soon as the DPH and AMR reached the resolution described in the respondent director’s May 15, 2000 letter to the complainant, in which the respondent director indicates, “concerning documents labeled as ‘strategy and negotiations’, the Department is no longer asserting that exemption.”

19. It is therefore concluded that the 3 documents provided to the complainant by letter dated June 12, 2000, as well as those provided to him by letter dated May 15, 2000, and previously labeled as exempt “strategy and negotiations” records, were not provided promptly, within the meaning of §1-210(a), G.S.

20. With respect to the request as described in paragraph 2b, above, it is found that by letter dated May 5, 2000, the respondents provided the complainant with the records they had, as of that date. It found that although the records provided to the complainant did not exist as of April 18, 2000 (the date the respondents received the complainant’s request), the respondents nonetheless provided the complainant with records that were generated subsequently that were responsive to his request.

21. It is therefore concluded that the respondents did not violate the FOI Act as alleged in the complaint.

22. With respect to the request as described in paragraph 2c, above, it is found that the respondents maintain records responsive to such request, however, the respondents claim that such records are exempt from disclosure pursuant to the attorney-client privilege. The complainant in his request indicated that he is not seeking “material sent to the Attorney General for legal advice or received from the Attorney General.”

23. Section 1-210(b)(10), G.S., permits the nondisclosure of: “[C]ommunications privileged by the attorney-client relationship.”

24. 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).

25. It is concluded that to the extent that the records maintained by the respondents are confidential communications between client and attorney, exchanged in the context of seeking and giving of legal advice, such communications are exempt from disclosure pursuant to §1-210(b)(10), G.S.

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

1. With respect to the allegation as described in paragraph 2a, of the findings, above, henceforth, the respondents shall strictly comply with the promptness provision of §1-210(a), G.S.

2. With respect to the allegation as described in paragraph 2b, of the findings, above, the complaint is hereby dismissed.

3. With respect to the allegation as described in paragraph 2c, of the findings, above, the respondents shall forthwith review their records to determine whether all communications between the respondents and the Office of the Attorney General as of the date of the receipt of the complainant’s request, are confidential communications between client and attorney, exchanged in the context of seeking and giving of legal advice, within the meaning of the attorney-client privilege set forth at §1-210(b)(10), G.S. If records are located that do not fall within the privilege, forthwith such records shall be provided to the complainant. If all records located fall within the privilege, the respondents shall forthwith so notify the complainant in writing.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 2000.

_________________________________________

Dolores E. Tarnowski

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:

Burton M. Weinstein

Weinstein, Weiner, Ignal,

Napolitano & Shapiro, PC

350 Fairfield Avenue

PO Box 9177

Bridgeport, CT 06601

Commissioner, State of Connecticut,

Department of Public Health; and

State of Connecticut, Department

of Public Health, Health Systems

Regulation Division

c/o Peter L. Brown, Esq.

Assistant Attorney General

55 Elm St., PO Box 120

Hartford, CT 06141-0120

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

In the Matter of a Complaint by			FINAL DECISION
Burton M. Weinstein,
		Complainant
	against		Docket #FIC 2000-211
Commissioner, State of Connecticut, Department of Public Health; and Director, State of Connecticut, Department of Public Health, Health Systems Regulation Division,
		Respondents	December 13, 2000

FIC/2000-211/FD/det/20001214