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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Joan Coe, |
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Complainants |
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against |
Docket #FIC 2001-445 | |
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First Selectman, Town of Simsbury, |
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Respondents |
December 12, 2001 | |
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The above-captioned matter was heard as a contested
case on November 5, 2001, at which time the complainant and the respondent
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 respondent is a
public agency within the meaning of §1-200(1),
G.S.
2.
It is found that on
September 21, 2001, the complainant made a request to inspect the “file that
the town has compiled of [her] comments and conversations made in Town Hall.”
3.
It is found that the
respondent provided the complainant with a file which contained records
responsive to the complainant’s request, however portions of two records in
the file were redacted (hereinafter “two records”).
4.
It is found that when
the complainant inquired about the redactions the respondent informed her that
the redacted portions of the two records consisted of attorney client
privileged information and were exempt from disclosure under the Freedom of
Information (“FOI”) Act.
5.
By letter dated
September 24, 2001, the complainant appealed to this Commission alleging that
the respondent violated the FOI Act by denying her access to inspect
unredacted copies of the two records. The
complainant also requested the imposition of a civil penalty in the amount of
one thousand dollars.
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 inspect such records promptly during
regular office or business hours . . . 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.
It is found that the
two records are public records within the meaning of §1-210(a), G.S.
8.
The respondent
submitted the subject records to the Commission for in-camera inspection,
which records have been identified as in-camera records #s 2001-445-01
and 2001-445-02.
9.
The respondent
contends that §1-210(b)(10), G.S., exempts the redacted portions of in-camera
records #s 2001-445-01 and 2001-445-02 from mandatory disclosure because they
contain legal advice or legal opinions.
10.
Section 1-210(b)(10),
G.S., provides that nothing in the FOI Act shall be construed to require
disclosure of “communication privileged by the attorney-client relationship
. . . .”
11.
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 advisor in his capacity as such, the communication 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).
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 in-camera
records contain the legal opinion of the respondent’s attorney to the
respondent in response to requests for legal advice, which are the redacted
portions of the two records provided to the complainant, and communications
from the respondent to her attorney seeking legal advice.
It is further found that the redacted portions are communications
between attorney, in the capacity of legal advisor, and client, and contain
legal advice sought by the client and provided in confidence.
14.
It is concluded that
the redacted portions of the two records are privileged communications within
the meaning of §1-210(b)(10), G.S. It
is further concluded that such portions of the two records are exempt from
disclosure by virtue of such statute and that the respondent did not violate
§1-210(a), G.S., when she failed to provide the complainant with access
thereto.
15.
Consequently, the
complainant’s request for the imposition of civil penalties is denied.
The following order
by the Commission is hereby recommended on the basis of the record concerning
the above-captioned complaint.
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2001.
_______________________________________
Petrea A. Jones
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:
First Selectman,
Town of Simsbury
c/o Robert DeCrescenzo, Esq.
Updike, Kelly & Spellacy, PC
One State Street
Hartford, CT 06123-1277
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-445/FD/paj/12/17/2001