FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Eileen Miller, | |||
| Complainants | |||
| against | Docket #FIC 2001-477 | ||
|
Superintendent of Schools, Amity Regional School District No. 5, |
|||
| Respondent | August 14, 2002 | ||
The above-captioned matter was heard as a contested case on December 17, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the above-captioned matter was consolidated with contested case docket #FIC 2001-467, Eileen Miller v. Superintendent of Schools, Amity Regional School District No. 5. The records at issue were reviewed in camera.
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 of complaint dated and filed on October 17, 2001 with the Commission, the complainant appealed, alleging that the respondent violated the Freedom of Information Act by denying her access to review the following records concerning payment to vendors: “1) correspondence directed to Vince Grignano regarding purchase orders and budget; 2) correspondence to Russ Faroni regarding purchase orders and budget; 3) correspondence to Katheleen LaBlanc regarding check dating; 4) correspondence to Servicemaster and their respective representatives regarding purchase orders and budgets; 5) correspondence prior to February 1999; and 6) correspondence to Dr. Wenner regarding purchase orders and budget” (hereinafter “requested records”).
3. It is found that through a series of requests between August 14 and September 24, 2001 the complainant requested that the respondent provide her with access to review and obtain copies of numerous records.
4. It is found that the respondent has provided the complainant with access to review and copy numerous records requested, however, the respondent has not provided the complainant with access to 285 pages of records which the respondent claims are exempt from disclosure pursuant to §§1-210(b)(4) and 1-210(b)(10), G.S.
5. The respondent provided the Commission with a copy of the 285 pages of records at issue for in camera inspection. The complainant contends that there should be more records available than those with which she was provided and those being offered for in camera inspection, however, the respondent represented at the hearing in this matter that the in camera records are the only records responsive to the complainant’s request that have not been provided to her.
6. Following the hearing in this matter the Commission conducted an in camera inspection of the 285 pages of records submitted. Such records have been designated IC page #s 2001-477-1 through 2001-477-285, inclusive, for identification purposes.
7. Section 1-210(a), G.S., provides in relevant part:
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. 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.
8. Section 1-212(a), G.S., further provides, in relevant part: “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
9. It is concluded that the in camera records are public records within the meaning of §1-210(a), G.S.
10. With respect to the respondent’s claim of exemption pursuant to §1-210(b)(4), G.S., such provision permits the nondisclosure of “[r]ecords 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.”
11. 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.
12. 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.
13. The Commission takes administrative notice of the evidence presented in contested case docket #FIC 2002-075 Carole W. Briggs v. Rolfe W. Wenner, Superintendent of Schools, Amity Regional School Distrcit No. 5, with respect to litigation to which the respondent district is a party, and which litigation was pending as of the date of the hearing in this matter.
14. It is found that Attorney Carole Briggs, until sometime in early 2001, represented the respondent district in litigation, known as Amity v. Atlas, against a company that had constructed a school building for such district. It is found that at some point Attorney Briggs stopped representing the respondent district in Amity v. Atlas. Thereafter, the law firm of Cummings and Lockwood succeeded Attorney Briggs in representing the respondent in connection with the Amity v. Atlas litigation.
15. 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 the respondent district officially filed a withdrawal of its action with the court in February of 2002.
16. It is further found that Attorney Briggs filed a letter of intent to sue the respondent district on August 15, 2001 and subsequently instituted a lawsuit against the respondent district on or about September 12, 2001 for nonpayment of her legal bills in connection with the Amity v. Atlas litigation (hereinafter “the Briggs v. Amity litigation”). The respondent district in turn, filed a malpractice claim against Attorney Briggs 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 in this matter.
17. With respect to the respondent’s §1-210(b)(4), G.S., claim, it is found that IC#2001-477-01 through 06 pertains to the Amity v. Atlas litigation, and portions contain “strategy”, and were therefore exempt from disclosure at the time of the complainant’s request since such case was pending. It is also found that other portions, specifically, hours of work to be performed in connection with Amity v. Atlas and estimated cost/dollar amounts representing charges to the respondent district located at IC#2001-477-05 lines 14, 15, 16, 23 and 31, and IC#2001-477-06 do not constitute “strategy”. It is also found that since Amity v. Atlas has been settled, the portions described herein that constituted “strategy” are no longer exempt pursuant to §1-210(b)(4), G.S.
18. It is further found that IC#2001-477-07 through IC#2001-477-261 are purchase orders, invoices and records of the dollar amounts, and the bases upon which, charges were made to the respondent district for services rendered and which would be paid for with taxpayer funds. It is found that IC#2001-477-07 through IC#2001-477-261 did not constitute “strategy” at anytime within the meaning of §1-210(b)(4), G.S.
19. With respect to the respondent’s §1-210(b)(10), G.S., claim, such provision permits the nondisclosure of “communications privileged by the attorney-client relationship….”
20. 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.
21. 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. . . .
22. 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.
23. 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.
24. It is found that IC#2001-477-01 through IC#2001-477-06 were generated by Attorney Carole Briggs and sent to the respondent district as her client in the context of Amity v. Atlas. It is found that all except the following portions of IC#2001-477-01 through IC#2001-477-06 constitute communications privileged by the attorney-client relationship and are therefore, exempt pursuant to the §1-210(b)(10), G.S.: IC#2001-477-05: lines 14, 15, 16, 23 and 31, and IC#2001-477-06.
25. It is further found that IC#2001-477-07 through IC#2001-477-261 do not constitute confidential communications between attorney and client, within the meaning of §1-210(b)(10), G.S., and are therefore not exempt from disclosure. However, it is found that IC#2001-477-262 through IC#2001-477-285 are confidential communications between attorney and client within the meaning of §1-210(b)(10), G.S., and are therefore exempt from disclosure.
26. It is therefore, concluded that the respondent did not violate §1-210(a), G.S., when he failed to provide the complainant with those portions of IC#2001-477-01 through IC#2001-477-06 which constituted “strategy” within the meaning of §1-210(b)(4), G.S., at the time of the complainant’s request, and IC#2001-477-262 through 285, which constitute communications privileged by the attorney-client relationship, within the meaning of §1-210(b)(10), G.S.
27. However, it is also concluded that the respondent violated §1-210(a), G.S., when he failed to provide the complainant with IC#2001-477-05: lines 14, 15, 16, 23 and 31, IC#2001-477-06, and IC#2001-477-07 through IC#2001-477-261 which do not constitute “strategy” within the meaning of §1-210(b)(4), G.S., or communications privileged by the attorney-client relationship within the meaning of §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. Forthwith, the respondent shall provide the complainant with a copy of the following in camera records, or portions thereof: IC#2001-477-05: lines 14, 15, 16, 23 and 31, IC#2001-477-06 through IC#2001-477-261.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 14, 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:
Eileen Miller
77 Center Road
Vernon, CT 06066
Superintendent of Schools, Amity
Regional School District No. 5
c/o Frederick L. Dorsey, Esq.
Siegel, O'Connor, Zangari,
O'Donnell & Beck, PC
150 Trumbull Street
Hartford, CT 06103
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-477/FD/paj/8/15/2002