FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Paul A. Green and Journal Inquirer, | |||
| Complainants | |||
| against | Docket #FIC 2002-172 | ||
| Chairman, Connecticut Resources Recovery Authority; and Connecticut Resources Recovery Authority, | |||
| Respondents | October 9, 2002 | ||
The above-captioned matter was heard as a contested case on June 27, 2002, at which time the complainants 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. By letter dated March 15, 2002, complainant Green requested from the respondents certain documents, including any communications between the respondent authority (hereinafter, “CRRA”) and any other party in the Governor’s office during the period from January 1996 through the present.
3. By facsimile and letter to complainant Green dated April 16, 2002, the respondents replied to the complainants’ request by stating in relevant part:
“Specifically, in responding to your request for any communications between CRRA and any party in the Governor’s Office, from 1998 to the present, CRRA has withheld certain documents from disclosure. CRRA withheld these documents pursuant to the statutory protection afforded ‘communications privileged by the attorney-client relationship.’ Conn. Gen. Stat. §1-210(b)(10). In addition, the documents pertain to ‘strategy and negotiations with respect to pending claims or pending litigation’ as contemplated by the FOIA statute. Conn. Gen. Stat. § 1-210(b)(4).”
Docket #FIC 2002-172 Page 2
4. By letter of complaint dated and filed on April 17, 2002, the complainants appealed to the Commission alleging that the respondents violated §1-210, G.S., by declining to provide them with the information described in paragraph 2, above.
5. It is found that the respondents maintain records responsive to the complainants’ requests and that such records are public records within the meaning of §1-210(a), G.S.
6. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record….”
7. The respondents claim that the subject records are exempt from disclosure pursuant to both §1-210(b)(10), G.S., as attorney-client privileged communications, and §1-210(b)(4), G.S., as records of strategy and negotiations with respect to pending claims or pending litigation.
8. In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”
9. In relevant part, §1-210(b)(4), G.S., 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.”
10. Section 1-200(9), G. S., defines “Pending litigation” to mean “(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.”
11. The respondent submitted the subject records to the Commission for an in camera inspection, which records consist of eight groupings, marked by the Commission as in camera document #s 2002-172, pages 1 through 13.
12. It is found that the records submitted for in camera inspection consist of the following:
a. January 2, 2002 memorandum from Robert E. Wright to Peter Ellef (pages 1 and 2);
Docket #FIC 2002-172 Page 3
b. an untitled and undated draft of the memorandum described in paragraph 12a, above, (pages 3 and 4);
c. an undated draft of the memorandum described in paragraph 12a, above, from R.E. Wright to P.N. Ellef (page 5);
d. an undated memorandum from Robert E. Wright to Kathleen O’Connor (pages 6 and 7);
e. an undated and untitled document (page 8);
f. a memorandum dated January 16, 2002 from Robert E. Wright to Peter Ellef (page 9);
g. an undated and untitled draft of the memorandum described in paragraph 12a, above (pages 10-12); and
h. an undated memorandum from R.E. Wright to P.N. Ellef (page 13).
13. It is found that Robert E. Wright is an attorney, was president of the CRRA and was formerly outside legal counsel to the CRRA; and that Wright authored the documents to Peter Ellef, former chairman of the CRRA and Chief of Staff for Governor John G. Rowland. It is also found that the document described in paragraph 12d, above, was prepared by Attorney Wright for Kathleen O’Connor in her capacity as Legal Counsel to Governor John Rowland.
14. It is further found that all of the documents presented for in camera inspection were prepared after CRRA entered into an agreement with the Enron Corporation (hereinafter, “Enron”) and all the documents described in paragraph 12, above, contain information with respect to that agreement.
15. With respect to the respondents’ claim that the subject records are exempt from disclosure because they constitute 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 set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002). In that case, the Supreme Court stated that §52-146r, G.S., which establishes 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.
16. Section 52-146r(2), defines “confidential communications” as:
Docket #FIC 2002-172 Page 4
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. . . .
17. 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.
18. It is found that with respect to the records described in paragraphs 12a, 12b, 12c, 12f, 12g, and 12h, above, Robert Wright was acting in a professional capacity as an attorney advising Peter Ellef, the then chairman of the CRRA, and consequently such documents, drafted by Attorney Wright are privileged and exempt from disclosure by virtue of the attorney-client relationship within the meaning of §1-210(b)(10), G.S.
19. It is therefore concluded that the respondents did not violate the disclosure provisions of §1-212(a), G.S., by failing to provide the records described in paragraph 18, above, to the complainants.
20. It is found that with respect to the record described in paragraph 12d, above, no attorney-client privilege existed between Attorney Wright and Attorney O’Connor and, therefore, such document does not constitute a communication privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.
21. It is also found that with respect to the record described in paragraph 12e, above, the respondents failed to prove who prepared that document, and for whom it was prepared. Consequently, it is concluded that it is not exempt from disclosure pursuant to §1-210(b)(10), G.S.
22. It is further found that the records described in paragraph 12, above, were created during the period when the respondents were exploring options with respect to the agreement between CRRA and Enron, and at the time of the complainants’ request, the respondents were considering “action to enforce or implement legal relief or a legal right” in connection with that agreement, and that such consideration falls within the definition of “pending litigation” within the meaning of §1-200(9)(C), G.S.
Docket #FIC 2002-172 Page 5
23. It is also found that the records described in paragraphs 12d and 12e, above, pertain to strategy with respect to pending litigation within the meaning of §1-210(b)(4), G.S. It is concluded, therefore, that the respondents did not violate the disclosure provisions of §1-
212(a), G.S., by failing to provide to the complainants the records described in paragraphs 12d and 12e, above.
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 October 9, 2002.
_______________________________________
Petrea A. Jones
Acting Clerk of the Commission
Docket #FIC 2002-172 Page 6
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:
Chairman, Connecticut Resources
Recovery Authority; and
Connecticut Resources Recovery
Authority
c/o Peter W. Hull, Esq.
Cummings & Lockwood
CityPlace I
185 Asylum Street
Hartford, CT 06103-3495
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-172/FD/paj/10/10/2002