FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Carole W. Briggs, | |||
| Complainants | |||
| against | Docket #FIC 2002-075 | ||
|
Rolfe W. Wenner, Superintendent Of Schools, Amity Regional School District No. 5, |
|||
| Respondent | July 10, 2002 | ||
The above-captioned matter was heard as a contested case on May 17, 2002, 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. By letter to the respondent dated January 24, 2002, the complainant requested access to, and possibly copies of, the following:
a. “All billing records, purchase orders, payments and communications (internal and external) regarding such billings for the following legal service providers to Amity [Regional School District No.5]”: Cummings and Lockwood, for the period of May 2001-January2002; Sax, Doernberger & Vita, for the period of August 2001-January 2002; Siegel O’Conner, Schiff & Zangari for the period of May 2001-January 2002; and Wiggin & Dana, for the period of May 2001-January 2002;
b. “All reports, statements and/or documents referencing the mediation and/or settlement of the case Amity v. Atlas, et al. filed by any of the parties”;
c. “Any documents relating to the settlement of the above-referenced litigation”; and
d. “Audit report prepared by Tecum or any other audit firm relating to bills rendered by the firm of C.W. Briggs & Associates, P.C.”
3. By reply letter dated January 31, 2002, the respondent advised the complainant that:
a. with respect to her request described in paragraph 2a., above, he was in the process of compiling the records responsive to such request;
b. with respect to her requests described in paragraph 2b. and c., above, responsive documents are exempt from disclosure under the Freedom of Information (hereinafter “FOI”) Act, pursuant to §1-210(b)(4), G.S., but that she could review the settlement agreement; and
c. with respect to her request described in paragraph 2d., above, the Amity Regional School District was not in possession of an audit report by Tecum or any other audit firm relating to bills rendered by C.W. Briggs & Associates, P.C. The respondent further advised that he was unaware of the existence of a final audit report by Tecum or any other firm, and if such a report were generated, he anticipated that it would be exempt from disclosure pursuant to §§1-210(b)(4) and 1-210(b)(10), G.S.
4. By letter dated February 20, 2002 and filed February 22, 2002, the complainant appealed to the Commission alleging that the respondent had improperly redacted one of the requested invoices for Saxe, Doernberger & Vita (hereinafter “Saxe”), responsive to her request described in paragraph 2a., above, and had failed to produce records that were responsive to her remaining requests in violation of the FOI Act. In addition, the complainant requested that the Commission impose civil penalties against the respondent.
5. Section 1-200(5), G.S., defines “public records” as:
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.
6. Section 1-210(a), G.S., provides in relevant part that:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…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.
7. In turn, §1-212(a), G.S., provides in relevant part that:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any record.
8. It is found that to the extent records exist that are responsive to the complainant’s requests described in paragraph 2, above, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
9. At the conclusion of the hearing in this matter, the respondent submitted both a redacted copy and an unredacted copy of an invoice package from Saxe containing a September 25, 2001 invoice and back-up documentation, partially responsive to the complainant’s request described in paragraph 2a., above, and a copy of a report, responsive to the complainant’s request described in paragraph 2d., above, to the Commission for an in camera inspection (the in camera submission consists of 99 pages, of which pages 92-99 consist of the unredacted copy of the September 25, 2001 invoice and back-up documentation).
10. It is found that the complainant in this matter is an attorney, who until sometime early in 2001 represented the Amity Regional School District (hereinafter “Amity”) in litigation, known as Amity v. Atlas, against a company that had constructed a school building for Amity. It is further found that the complainant was ordered by the court to stop representing Amity in Amity v. Atlas for violation of certain court rules. Thereafter, the law firm of Cummings and Lockwood succeeded the complainant in representing Amity in connection with the Amity v. Atlas litigation.
11. It is further found that the parties in the Amity v. Atlas litigation entered into a settlement agreement on or about January 16, 2002 and that Amity officially filed a withdrawal of its action with the court in February of 2002.
12. It is further found that the complainant filed a letter of intent to sue Amity on August 15, 2001 and subsequently instituted a lawsuit against the respondent and Amity on or about September 12, 2001 for nonpayment of the complainant’s legal bills in connection with the Amity v. Atlas litigation (hereinafter “the Briggs v. Amity litigation”). Amity in turn, filed a malpractice claim against the complainant on or about October 26, 2001 (hereinafter “the Amity v. Briggs litigation”). Both the Briggs v. Amity litigation and the Amity v. Briggs litigation were pending as of the date of the hearing on this matter.
13. It is further found that the Saxe law firm represents the respondent and Amity in connection with both the Briggs v. Amity litigation and the Amity v. Briggs litigation.
14. With respect to the complainant’s request described in paragraph 2a., above, it is found that the respondent provided the complainant with invoices from the specified law firms, some of which were provided in redacted form. The complainant had no objection to the redactions made, with the exception of those located in the invoice package from Saxe, containing invoices dated September 25, 2001 and back-up documentation and an invoice for October 12, 2001.
15. At the hearing on this matter, the respondent objected to the consideration of whether redactions to records other than the September 25, 2001 invoice and back-up documentation were appropriate since the complainant had limited her complaint to the redactions concerning only “one of the requested invoices” and the respondent was led to believe that the September 25, 2001 invoice was the invoice at issue. The complainant stated at the hearing on this matter that her reference in her complaint letter to one invoice referred to the entire invoice package described in paragraphs 9 and 14, above; however, the complainant limited her comments or objections to the redactions on the September 25, 2001 invoice and back-up documentation. Therefore, the Commission will only consider whether redactions to such invoice and back-up documentation were appropriate.
16. In addition, the complainant stated at the hearing on this matter, that she continued to seek any “communications” regarding billings or invoices as requested in her January 24, 2002, letter. However, no issue was raised in the complaint concerning requested communications and it is therefore not properly before the Commission and will not be addressed herein.
17. With respect to the complainant’s request described in paragraph 2d., above, it is found that the complainant obtained a copy of an audit report prepared by a company called Tecum, Inc., dated November 21, 2001, from the attorney representing her in the Briggs v. Amity and Amity v. Briggs litigation sometime in the Spring of 2002 (hereinafter “Tecum audit report”). The complainant’s attorney had obtained the Tecum audit report from attorneys at the Saxe law firm.
18. It is also found that the Tecum audit report obtained by the complainant is the same report as that submitted to the Commission for in camera inspection.
19. It is further found that at the time of the complainant’s request, the respondent did not maintain physical possession of the Tecum audit report. However, at that time, the respondent was well aware that an audit report prepared by a firm hired by Saxe on Amity’s behalf, existed in some form and was maintained by Saxe.
20. It is further found that although the respondent did not have physical possession of the Tecum audit report at the time of the complainant’s request, such report was prepared for the benefit of Amity and was paid for by Amity. Therefore, such report constituted a public record within the meaning of §1-200(5), G.S., and the respondent was clearly entitled to such report maintained by his attorneys. The respondent cannot avoid disclosure of a public record merely by avoiding physical possession of such record. See e.g., First Selectman, Town of Columbia v. State of Connecticut, Freedom of Information Commission and John M. Leahy, Docket #CV 00 0501055, Judicial District of New Britain, November 28, 2000 (Owens, J.).
21. It is therefore found that the respondent’s January 31, 2002 reply to the complainant concerning the existence of an audit report was evasive and misleading.
22. At the hearing on this matter, the respondent claimed that the redactions made on the September 25, 2001 invoice and back-up documentation, and the withholding of the Tecum audit report in its entirety, were appropriate because such records or portions thereof are exempt from disclosure pursuant to §§1-210(b)(4) and 1-210(b)(10), G.S.
23. With respect to the respondent’s claims of exemption under §1-210(b)(4), G.S., that provision, in relevant part, permits the nondisclosure 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.
24. Section 1-200(8), G.S., defines a pending claim as:
a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
25. Section 1-200(9), G.S., defines pending litigation as:
(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency's consideration of action to enforce or implement legal relief or a legal right.
26. The respondent contends that all of the redactions to the September 25, 2001 invoice and back-up documentation were appropriate because disclosure of such portions would reveal particular strategies or courses of action that were being considered or undertaken by counsel for Amity, as well as by third parties retained by counsel, in connection with the Briggs v. Amity and Amity v. Briggs litigation. The respondent further contends that the audit report is exempt because it relates to Amity’s strategy as to how to proceed in connection with the Briggs v. Amity and Amity v. Briggs litigation.
27. It is found that the Briggs v. Amity litigation constituted a pending claim as of August 15, 2001, when the complainant filed her notice of intent to sue. It is further found that the Amity v. Briggs litigation constituted pending litigation on or about October 26, 2001 and that any consideration, prior to the commencement of such litigation, of whether to pursue an action against the complainant, constituted a pending claim within the meaning of §1-200(9), G.S.
28. With respect to the September 25, 2001 invoice and back-up documentation, it is found, after a careful review of the records submitted for in camera inspection, that nearly all of the redactions pertain to the Tecum audit. It is further found that with respect to such redactions, the respondent had a colorable claim with respect to many of them, at the time of the complainant’s request and the time such redactions were made, that their disclosure would reveal strategy in connection with either the Briggs v. Amity or the Amity v. Briggs litigation.
29. However, it is further found that the redactions in this case, with respect to dollar amounts charged to Amity, and the breakdowns for such charges, were not colorable as strategy at any time. Moreover, it is found that a fundamental principle of government accountability to the public, as embodied by the FOI Act, requires the disclosure of the amounts of the expenditures of taxpayers’ funds, and the bases for such expenditures.
30. It is further found that as of the time the complainant received a copy of the Tecum audit report from her lawyer, as described in paragraph 17, above, disclosure of the other redactions pertaining to the Tecum audit would no longer reveal a strategy that was not already known.
31. Finally, it is found that there are a number of redactions, that do not appear to relate to the Tecum audit report and that would conceivably reveal strategy in connection with either the Briggs v. Amity or the Amity v. Briggs litigation, which portions are therefore exempt from disclosure pursuant to §1-210(b)(4), G.S. Those portions are located on the following pages of the in camera submission: on page 89, 9-13-01 entry, after the words “t/c Tom Duplinsky” and before the words “review complaint by Carole Briggs” and the last two words of the third line to the end of such entry, and 9-14-01 entry, the last line of such entry; and on page 90, 9-19-01 entry, the last two lines of such entry and 9-21-01 entry, after the words “Carole Briggs” in the second line through line 4 of such entry.
32. It is concluded however, that the remaining redacted portions of the September 25, 2001 invoice and back-up documentation, other than those explicitly set forth in paragraph 31, above, are not exempt from disclosure pursuant to §1-210(b)(4), G.S.
33. With respect to the respondent’s claim that the redacted portions of the invoice and back-up documentation are exempt because they constitute attorney-client privileged communications, in relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”
34. 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.
35. 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. . . .
36. 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.
37. 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.
38. It is found, after a careful review of the records submitted for in camera inspection, that the remaining redacted portions of the September 25, 2001 invoice and back-up documentation do not constitute “confidential communications” privileged by the attorney-client relationship, as set forth in paragraphs 34 through 37, above. Rather, it is found that the redacted portions of the September 25, 2001 invoice and back-up documentation merely document the amounts, and bases upon which, charges were made to Amity for services rendered and which would be paid for with taxpayer funds.
39. It is therefore concluded that the remaining redacted portions of the September 25, 2001 invoice and back-up documentation are not exempt from disclosure pursuant to §1-210(b)(10), G.S.
40. It is further concluded with respect to the complainant’s allegation described in paragraph 2a., above, that the respondent violated the provisions of §§1-210(a) and 1-212(a), G.S. , by failing to disclose those portions of the September 25, 2001 invoice and back-up documentation that would reveal dollar amounts charged to Amity and the breakdowns for such charges at the time of the complainant’s request, and by failing to disclose the remaining portions of such records, other than those portions described in paragraph 31, above, at least as of the time the complainant received a copy of the Tecum audit report.
41. With respect to the Tecum audit report and the complainant’s request for such record, as described in paragraph 2d., above, the Commission declines to address the issues with respect to whether such report is exempt from disclosure pursuant to either §1-210(b)(4) or 1-210(b)(10), G.S. Under the facts and circumstances of this case, wherein the complainant has already obtained a copy of the Tecum audit report, the issues are essentially moot and the Commission will not participate in the personal disputes that are ongoing between the parties when it can offer no further practical relief. See paragraph 3 of the order, below. Furthermore, the Commission notes that even if the audit report consisted of “communications privileged by the attorney-client relationship” within the meaning of §1-210(b)(10), G.S., any such privilege was waived in this case at the time such report was provided to the complainant in its entirety
42. With respect to the complainant’s requests described in paragraphs 2b. and 2c., above, the complainant contends that other documents should have been made available to her in addition to the Amity v. Atlas settlement agreement.
43. The respondent contends with respect to the complainant’s request described in paragraph 2b., above, that he does not maintain any documents referencing the mediation and/or settlement of the Amity v. Atlas case “filed” by any of the parties. The respondent read the complainant’s request to encompass only documents that were filed by the parties in the case with the court.
44. The respondent contends with respect to the complainant’s request described in paragraph 2c., above, that he does not maintain any documents relating specifically to the “settlement” of the Amity v. Atlas litigation, and that the complainant’s request in paragraph 2c., above, does not encompass documents concerning the mediation of the case.
45. It is found that there was evidence at the hearing on this matter that certain records exist, which include, at a minimum, Amity’s position paper prepared for submission to the mediator, which records are possibly maintained by the law firm of Cummings & Lockwood in connection with its representation of Amity in the Amity v. Atlas litigation.
46. It is further found that the respondent’s reading of the complainant’s requests described in paragraph 2b and 2c, above, was unreasonably narrow, and that if there were confusion as to what the complainant was requesting, the respondent could have contacted the complainant to seek clarification of her requests.
47. It is further found that the records described in paragraph 45 above, could reasonably be construed as responsive to the complainant’s requests described in either paragraphs 2b. or 2c., above. And, as set forth in paragraph 20 above, the respondent cannot avoid disclosure of public records merely because his attorneys physically maintain such records.
48. It is concluded therefore, with respect to the complainant’s requests described in paragraphs 2b., and 2c., above, that the respondent violated the provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with copies of records, either maintained by him or attorneys on Amity’s behalf, that were filed, either in court, the respondent’s office or with the respondent’s attorneys, in connection with the mediation or settlement of the Amity v. Atlas litigation.
49. Under the unique facts and circumstances of this case, the Commission declines to consider the imposition of civil penalties against the respondent.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide the complainant with a copy of the September 25, 2001 invoice and back-up documentation. In complying with this order, the respondent may redact those portions of the records concluded to be exempt pursuant to §1-210(b)(4), G.S., as specifically described in paragraph 31, of the findings, above.
2. The respondent shall forthwith conduct a diligent search for any records that were filed, either in court, the respondent’s office or with the respondent’s attorneys, in connection with the mediation or settlement of the Amity v. Atlas litigation and shall thereafter provide the complainant with a copy of any non-exempt record located as a result of such search. The respondent shall also execute an affidavit outlining the nature and scope of such search, the outcome of such search, a listing of the records provided to the complainant and a precise listing of any records, or portions thereof, that the respondent has not provided to the complainant, pursuant to this order, because the respondent claims such records, or portions thereof, are exempt from disclosure, which listing shall characterize the nature of the records, or portions thereof, and indicate the precise statutory basis upon which such records, or portions thereof, are being withheld. The respondent may charge the complainant for copies of any records located and provided to the complainant in accordance with the provisions of §1-212, G.S.
3. It is apparent from the record in this case that there is a great deal of personal animus between the parties. It is also apparent that the animus colored the decisions and actions of both parties to this complaint, which, in turn, led to obfuscation and a lack of fair dealing. The Commission believes that most of the issues addressed in this decision could have been resolved without the intervention of the Commission, and the delay and additional costs to the taxpayers resulting therefrom, if both parties had acted reasonably.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 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:
Carole W. Briggs
C. W. Briggs & Associates, P.C.
45 Glastonbury Boulevard
Glastonbury, CT 06033
Rolfe W. Wenner, Superintendent
of Schools, Amity Regional
School District No. 5
c/o Daniel P. Murphy, Esq. and
Frederick L. Dorsey, Esq.
Siegel, O'Connor, Zangari,
O'Donnell & Beck, PC
171 Orange Street, PO Drawer 906
New Haven, CT 06504
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-075/FD/paj/7/15/2002