FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Community Health Center, Inc.,
		Complainants
	against		Docket #FIC 2001-309
Commissioner, State of Connecticut, Department of Social Services; and State of Connecticut, Department of Social Services,
		Respondent	May 22, 2002

            The above-captioned matter was heard as a contested case on August 6, 2001, 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.   It is found that, by letter dated May 18, 2001, the complainant requested that the respondents provide it with copies of:

 

all intra/inter office communication and documents since January 1, 1999 to date involving the setting of rate changes affecting it, including any documents or communications used by the respondent department [hereinafter “DSS”] or its agents or employees in changing the imputed health service visits, any reports or evaluations generated by DSS to justify a reduction in reasonable cost reimbursements; any data, analysis or studies done to justify the primary health visit standard, any written communications, e-mails (including back-up tapes of “erased” e-mail as electronic communications), faxes, letters, etc. generated by any DSS employee concerning the need to comply with state or federal law and/or circumventing state or federal law, in the modification of reimbursement to Federal Qualified Health Centers [hereinafter “FQHCs”] of reasonable cost or the appropriate number of imputed physician visits;  copies of all communication/correspondence to any federal or state regulator since January 1, 1999 relative to rate changes relative to FQHC payment plans; all non-attorney correspondence, communications, e-mails, memoranda or notes of conversations authored by, addressed to, sent to, or copied to, any DSS employee which directly or indirectly refers to the complainant, or directly or indirectly to the issue of FQHC cost-based reimbursement.  The complainant asked that copying fees be waived and that the request be expedited.

 

            3.  By letter dated June 15, 2001, and filed with the Commission on June 18, 2001, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by denying it the copies of the requested records.   

 

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

 

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

“[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 or to receive a copy of such records in accordance with the provisions of section 1-212….” 

 

6.  It is found that, on July 26, 2001 and July 31, 2001, the respondents provided the complainant with copies of several records, which were responsive to the request described in paragraph 2, above. 

 

7.  The respondents submitted copies of three records to the Commission for in-camera inspection, which records have been identified as in-camera document #s 2001-309-1 through 2001-309-3, inclusive.  Such records have been withheld from the complainant.  

 

8.  The respondents contend that §1-210(b)(4), G.S., exempts the records described in paragraph 7, above, from mandatory disclosure.    

 

            9.  Section 1-210(b)(4), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of “records pertaining to strategy and negotiations 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....”

 

10.  Upon careful review of the in-camera documents submitted to the Commission in this matter, it is found that such documents pertain to the respondents’ strategy with respect to a pending written demand for legal relief, which demand sets forth the intention to institute legal action against the respondents.   It is concluded that such documents are exempt from mandatory disclosure by virtue of §1-210(b)(4), G.S., until such time as the claim has been finally adjudicated or settled. 

 

11.   The respondent also contends that in-camera document #2001-309-1 is exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S. 

 

12.  Section 1-210(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.”

 

13.  With respect to the respondent’s claim that in-camera document #2001-309-1 is exempt because it constitutes attorney-client privileged communications, the applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  That law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

14.  Section 52-146r(2), defines “confidential communications” as:

“all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . . “

15.  The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

16.  In addition, the Supreme Court has held that the privilege is waived when statements of the communications are made to third parties.  Ullmann v. State, 240 Conn. 698, 711 (1994).  However, waiver can occur only if there is knowledge of the existence of the right and intention to relinquish it.  Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 565 (1972); Blumenthal v. Kimber Mfg., Inc., 47 Conn. Sup. 378, 381-82 (2002).  The attorney-client privilege “cannot be waived without a knowing and intentional act by the party waiving it.”  Blumenthal, supra at 382.

 

17.  Upon careful review of the in-camera document #2001-309-1, it is found that it consists of confidential communications within the meaning of the attorney-client privilege exemption set forth in §1-210(b)(10), G.S.  Consequently, it is further concluded that such document is exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.  

 

18.  It is concluded that the respondents did not violate §1-210(a), G.S., by failing to provide the records described in paragraph 7, above, to the complainant.  

 

            19.  At the hearing in this matter, the complainant contended that the records described in paragraph 6, above, were not complete.

 

20.  It is found that, in response to the request described in paragraph 2, above, the respondents conducted a thorough search of its paper files and records, and provided the complainant with all requested records, except the in-camera documents described in paragraph 7, above.   It is also found that the respondents acted in good faith in this matter, but nevertheless failed to conduct a thorough search of its electronic files for the requested records, and therefore violated sec. 1-210(a), G.S.

 

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

 

1.  The respondents shall forthwith conduct a thorough search of their electronic files to determine if any records comply with the request described in paragraph 2 of the findings, above, and provide any such non-exempt records to the complainant.  The respondents shall inform the complainant by affidavit of the results of the search.  Such affidavit shall contain the following information: the name and qualifications of the person who conducted the search, what records were searched and the methodology used in the search.    

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of May 22, 2002.

 

 

_______________________________________

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:

 

Community Health Center, Inc.

c/o Richard R. Brown, Esq.

Brown, Paindiris & Scott, LLP

100 Pearl Street

Hartford, CT 06103-4506

 

Commissioner, State of Connecticut,

Department of Social Services; and

State of Connecticut, Department of

Social Services

c/o Peter L. Brown, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-309/FD/paj/5/29/2002