FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

Prior to the hearing in this matter, Susan K. Meisler, Saul K. Meisler, Rose K. Meisler, and the former law firm of Flaherty, Meisler and Courtney, moved to intervene.  Such motions were granted.  The above-captioned matter was heard as a contested case on September 12, 2002, 2003, at which time the complainants, respondent, and the interveners 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.  It is found that, by letter dated February 28, 2002, the complainant newspaper requested that the respondent provide it with a copy of the complete investigative report into the death of Arthur Meisler.  At the hearing in this matter, the parties and interveners stipulated that the death of Mr. Meisler was the result of a self-inflicted gunshot wound. 

 

3.  It is further found that, by letter dated March 1, 2002, the respondent denied the request described in paragraph 2, above, citing §§1-210(b)(2) and 1-210(b)(3), G.S., and the attorney-client privilege. 

 

4.  By letter dated March 12, 2002, and filed on March 14, 2002, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying them copies of the requested records.

 

5.  The respondent submitted the entire investigative file into the death of Mr. Meisler for in-camera inspection.  However, based upon the statements of the complainant Williams at the hearing in this matter, it is found that the only record at issue herein is a document entitled “Case Summary”, dated 12/21/01.  Such record is hereby identified as IC-2002-109-1 through IC-2002-109-3. 

 

6.  It is concluded that IC-2002-109-1 through IC-2002-109-3 is a public record within the meaning of §1-200(5), G.S.

 

7.  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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

 

8.  Section 1-210(b)(2), G.S, in relevant part provides for the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy."

 

9.  It is found that IC-2002-109-1 through IC-2002-109-3 is a summary of the respondent’s investigation into the death of Mr. Meisler.  It is further found that such record does not constitute personnel or medical files and similar files, within the meaning of §§1-210(b)(2), G.S.  Accordingly, it is concluded that such provision does not operate to exempt the requested record from mandatory exemption.

 

10.  Section 1-210(b)(3), G.S., permits the nondisclosure of:

 

[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

            11.  It is found that the respondent is a law enforcement agency within the meaning of §1-210(b)(3), G.S., and that it compiled the requested records in connection with the investigation of the death of Arthur Meisler.  It is also found that the requested records are not otherwise available to the public. 

 

12.  However, it is further found that the respondent failed to present sufficient evidence, and therefore failed to prove, that the requested records meet any of the criteria set forth in the remainder of §1-210(b)(3), G.S.  Accordingly, it is concluded that such provision does not operate to exempt the requested record from mandatory exemption.

 

13.  The intervening former law firm of Flaherty, Meisler and Courtney joined with the respondent in asserting the attorney-client privilege as a basis to withhold the requested records. 

 

14.  Section 1-210(b)(10), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of “communications privileged by the attorney-client relationship…” 

 

            15.  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.

16.  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. . . .

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.  Upon careful inspection of in-camera document IC2002-109-1 through IC2002-109-3, it is found that such record does not contain communications between attorneys and clients and does not constitute attorney-client privileged communications, within the meaning of §§1-210(b)(10), G.S.  Accordingly, it is concluded that such provision does not operate to exempt the requested record from mandatory exemption.

19.  The interveners Susan K. Meisler, Saul K. Meisler, and Rose K. Meisler, contend that §19a-411, G.S., provides a basis to withhold the requested records. 

 

20.  Section 19a-411, G.S., provides:

 

[t]he Office of the Chief Medical Examiner shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death and containing all other relevant information concerning the death and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case. The office shall promptly notify the state's attorney having jurisdiction of such death and deliver to the state's attorney copies of all pertinent records relating to every death in which further investigation may be advisable. Any state's attorney, chief of police or other law enforcement official may, upon request, secure copies of such records or other information deemed necessary by such official for the performance of his or her official duties.

(b) The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the commission. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, except that no person with a legitimate interest in the records shall be denied access to such records, and no person may be denied access to records concerning a person in the custody of the state at the time of death. As used in this section, a "person in the custody of the state" is a person committed to the custody of (1) the Commissioner of Correction for confinement in a correctional institution

 

or facility or a community residence, (2) the Commissioner of Children and Families, or (3) the Commissioner of Mental Retardation.

            21.  The interveners Susan K. Meisler, Saul K. Meisler, and Rose K. Meisler, contend that the investigation into the death of Mr. Meisler was under the control of the Chief Medical Examiner, and cite §§19a-407 and 19a-406, G.S., to support such contention. 

22.  Section 19a-407, G.S., provides:

[a]ll law enforcement officers, state's attorneys, prosecuting attorneys, other officials, physicians, funeral directors, embalmers and other persons shall promptly notify the Office of the Chief Medical Examiner of any death coming to their attention which is subject to investigation by the Chief Medical Examiner under this chapter, shall assist in making dead bodies and related evidence available to that office for investigations and postmortem examinations, including autopsies, and shall cooperate fully with said office in making the investigations and examinations herein provided for. In conducting such investigations or examinations, the Chief Medical Examiner may issue subpoenas requiring the production of medical reports, records or other documents concerning the death under investigation and compelling the attendance and testimony of any person having pertinent knowledge of such death.

(b) In cases of apparent homicide or suicide, or of accidental death, the cause of which is obscure, the scene of the event shall not be disturbed until authorized by the Chief Medical Examiner or his authorized representative. Upon receipt of notification of a death as provided herein, the Chief Medical Examiner or his authorized representative shall view and take charge of the body without delay.

(c) In conducting his investigation, the Chief Medical Examiner or his authorized representative shall have access to any objects, writings or other articles of property in the custody of any law enforcement official which in the Chief Medical Examiner's opinion may be useful in establishing the cause or manner of death. Upon the Chief Medical Examiner's request, a law enforcement official having custody of such articles shall deliver them to the Chief Medical Examiner, along with copies of any reports of the analysis of such articles by such law enforcement official.

 

The Chief Medical Examiner shall analyze such articles and return them to the official from whom they were obtained….

23.  Section 19a-406, G.S., provides in relevant part:

[T]he Chief Medical Examiner shall investigate all human deaths in the following categories: (1) Violent deaths, whether apparently homicidal, suicidal or accidental, including but not limited to deaths due to thermal, chemical, electrical or radiational injury and deaths due to criminal abortion, whether apparently self-induced or not; (2) sudden or unexpected deaths not caused by readily recognizable disease; (3) deaths under suspicious circumstances; (4) deaths of persons whose bodies are to be cremated, buried at sea or otherwise disposed of so as to be thereafter unavailable for examination; (5) deaths related to disease resulting from employment or to accident while employed; (6) deaths related to disease which might constitute a threat to public health. The Chief Medical Examiner may require autopsies in connection with deaths in the preceding categories when it appears warranted for proper investigation and, in the opinion of the Chief Medical Examiner, the Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, an autopsy is necessary. The autopsy shall be performed at the Office of the Chief Medical Examiner or by a designated pathologist at a community hospital. Where indicated, the autopsy shall include toxicologic, histologic, microbiologic and serologic examinations. If a medical examiner has reason to suspect that a homicide has been committed, the autopsy shall be performed at the Office of the Chief Medical Examiner or by a designated pathologist in the presence of at least one other designated pathologist if such other pathologist is immediately available. A detailed description of the findings of all autopsies shall be written or dictated during their progress. The findings of the investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and microbiologic examinations and the conclusions drawn therefrom shall be filed in the Office of the Chief Medical Examiner.

24.  However, upon careful review of the entire investigative file submitted for in-camera inspection, it is found that IC-2002-109-1 through IC2002-109-3 is the result of an investigation conducted by the respondent, and not the Chief Medical Examiner.  It is therefore found that IC-2002-109-1 through IC2002-109-3 is not a record of the Medical Examiner.  Accordingly, it is concluded that §19a-411, G.S., does not operate to exempt the requested record from mandatory exemption.

 

25.  It is concluded that the respondent violated §1-210(a), G.S., by denying the complainants a copy of IC-2002-109-1 through IC2002-109-3. 

 

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 complainants with a copy of IC-2002-109-1 through IC2002-109-3, at no cost.  

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 26, 2003.

 

 

 

 

 

 

 

_______________________________________

Dolores E. Tarnowski

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:

 

Ralph W. Williams, Jr. and Journal Inquirer

306 Progress Drive, P.O. Box 510

Manchester, CT  06045-0510

 

Chief, Police Department, Town of Vernon

c/o Jerome D. Levine, Esq.

280 Talcottville Road

Vernon, CT  06066

 

THE INTERVENORS TO THIS CONTESTED CASE ARE:

 

Susan K. Meisler, Saul K. Meisler, and Rose K. Meisler

c/o Kevin C. Connors, Esq.

Treiber, Guarnaccia & Connors

25 Church Street, P.O. Box 44

Willimantic, CT  06226

 

The former law firm of Flaherty, Meisler and Courtney

c/o Pamela J. Favreau, Esq.

P.O. Box 226

Willimantic, CT  06226

 

 

 

________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2002-109/FD/mes/3/3/2003