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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Bruce Kaz, |
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Complainants |
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against |
Docket #FIC 1999-575 | |
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Robert
Skinner, First Selectman, Town
of Suffield; and Ted Flanders, Building Inspector, Town of Suffield, |
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Respondents |
January 23, 2002 | |
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Following remand for further proceedings in Kaz v.
Freedom of Information Commission, et al., CV 000503942S, Cohn J., June
26, 2001, Superior Court Judicial District of New Britain, the above-captioned
matter was heard as a contested case on October 16, 2001, limited to
addressing the issue of whether certain supporting documents/ attorneys’
notes are disclosable to the complainant.
The complainant and the respondents appeared at the October 16, 2001
hearing, stipulated to certain facts, and presented testimony, exhibits and
argument. 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 August 23, 1999 (“letter”), the North Central District Health
Department informed Scott Gilmartin, a member of the Suffield Planning and
Zoning Commission, that he was violating the state public health code in his
handling of washing machine waste water on his premises.
Kaz v. FOI supra at p. 1.
Subsequently, the letter was sent anonymously to newspaper reporters
and other individuals during the time period when Gilmartin was involved in a
contested primary for his office. Id.
Soon thereafter, Gilmartin filed a complaint with the town of Suffield
(“town”), alleging that a town employee released the letter without his
permission in order to harm his political campaign. Kaz v. FOI supra at p. 2. The town retained attorney Justin Donnelly to investigate
Gilmartin’s complaint (hereinafter “investigation”). Id. Such
investigation concluded on or about November 17, 1999.
Id. On or about
December 3, 1999, the complainant made a request to the respondents for all
documentation or correspondence related to the Health Department letter of
August 23, 1999, including the investigation into the alleged “leak” of
said letter and the billing statements of the attorneys handling the
investigation. Id.
By letter dated December 3, 1999, the respondents provided the
complainant with some of the requested records, denied the complainant’s
request with respect to certain other records, and claimed attorney client
privilege with respect to the notes taken by the attorneys during their
investigation (hereinafter “notes”). Kaz v. FOI supra at p. 3. The October 16, 2001 hearing into this matter has been
convened to address whether the notes and any other supporting documents exist
and are disclosable to the complainant.
3. It is found that during attorney Donnelly’s investigation
he interviewed town employees and elected officials. He conducted some interviews in person and others by
telephone. Each interview was
conducted with one individual at a time. Following interviews, attorney
Donnelly summarized the contents of the interview on a tape recording, by
verbally speaking into a dictaphone-type tape recorder.
All of the summaries were contained on a single tape.
Attorney Donnelly also jotted down information gleaned from the
interviews on certain 3x5 cards (hereinafter “3x5 cards”).
4. It is found that the only records that exist at present are
the 3x5 cards containing attorney Donnelly’s notes. It is found that the dictaphone tape recording containing the
summary of interviews, described in paragraph 3, above, was erased and
recycled by attorney Donnelly’s office, and no longer exists. It is found that attorney Donnelly, believing this case
had long been put to rest was unaware that such tape was a record at issue.
It is further found that attorney Edward G. McAnaney, the town attorney
for Suffield, does not have any supporting documents or notes that are
responsive to the court’s order to determine specifically whether supporting
documents and attorneys’ notes exist.
5. The respondents first contend that attorney Donnelly is not a
“public agency” and therefore the 3x5 cards, containing his personal notes
are not “public records”.
6. It is found that attorney Donnelly is in private practice and not the “town attorney” for the town of Suffield. He was neither appointed, nor acting in such capacity while conducting the investigation. It is found that the town (specifically, the respondent First Selectman) hired attorney Donnelly for the limited and discreet purpose of conducting the investigation and producing a final report, which final report is not at issue in this case. It is found that attorney Donnelly created the dictaphone tape recording, and the 3x5 cards containing his personal jottings, for his own use, and such tape recording and cards were never provided to or turned over to the town or any public agency within the town.
7. Section 1-200(1), G.S., in relevant part defines "public agency" or "agency" as:
any executive, administrative or legislative office
of …any political subdivision of the state and any … town agency, any
department, institution, bureau, board, commission, authority or official of
… any city, town, borough, municipal corporation, school district, regional
district or other district or other political subdivision of the state,
including any committee of, or created by, any such office, subdivision,
agency, department, institution, bureau, board, commission, authority or
official, and also includes any judicial office, official, or body or
committee thereof but only in respect to its or their administrative functions….
8. It is found that attorney Donnelly is not an authority, official, or agency of the town of Suffield, within the meaning of §1-200(1), G.S., and therefore not a “public agency.”
9. Section 1-200(5), G.S.,
defines “public records” or “files" as: “[a]ny 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.” [Emphasis added.]
10.
Section
1-210(a), G.S., further 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 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. [Emphasis added.]
11.
It is concluded that attorney Donnelly’s personal notes contained on
the 3x5 cards, as well as his personal dictaphone tape recording, are not
records “prepared, owned, used, received or retained by a public agency”
within the meaning of §1-200(5), G.S., nor are they records “maintained or
kept on file” by a public agency, within the meaning of §1-210(a), G.S.
Consequently, the 3x5 cards and the dictaphone tape recording are not
“public records”.
12.
In light of the conclusions reached in findings 8 and 11, above, it is
not necessary to address the respondents’ further claims that the records at
issue are exempt from disclosure because they are “preliminary drafts and
notes”, within the meaning of §1-210(b)(1), G.S., and “attorney client
privileged communications” within the meaning of §1-210(b)(10), G.S.
13. It is therefore concluded that the complainant’s rights were not violated when he was not provided with attorney Donnelly’s 3x5 cards and dictaphone tape recording.
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 January 23, 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:
Robert
Skinner, First Selectman,
Town
of Suffield; and Ted Flanders,
Building
Inspector, Town of Suffield
c/o
Edward G. McAnaney, Esq.
Suffield
Village
Suffield,
CT 06078
and
Owen P. Eagan, Esq.
24
Arapahoe Road
West
Hartford, CT 06107
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/1999-575/PRFD/paj/1/28/2002