FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 19, 2004, at which time the complainant and the respondent appeared 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 June 12, 2003, the complainant requested that the respondent provide him with the following:

 

i)                    all correspondence, notes and e-mail messages between the Town Manager, members of the Town Council and Department Heads pertaining to the 2003-2004 budget;

ii)                   all e-mail messages received or sent by Kitch Breen Czernicki at e-mail address kczer758a@aol.com or any other e-mail account concerning the public’s business in her position as Mayor of the Town of Wethersfield (“town”) for the period January 31, 2003 to present;

iii)                 all e-mail messages received or sent by Daniel J. O’Connor at e-mail address danieljoconnor@msn.com or any other e-mail account concerning the public’s business in his position as Deputy Mayor of the town for the period January 31, 2003 to present;

iv)                 all e-mail messages received or sent by Police Chief, James Cetran, covering the time period January 1, 2003 to present;

v)                  cell phone records of Police Chief, James Cetran, covering the time period January 1, 2003 to present;

vi)                 Mobile Data Terminal records and any e-mail messages received or sent by Mr. Robert LaBonte for the period January 31, 2003 to present; and

vii)               Mobile Data Terminal records and any e-mail messages received or sent by Mr. Thomas Pentalow for the period January 31, 2003 to present.

 

3.  It is found that by letter dated June 20, 2003, the respondent acknowledged receipt of the complainant’s June 12, 2003 request, provided the complainant with copies of some of the requested records and informed the complainant that, “we are working on collecting all of the other information and will have this to you as soon as possible.”

 

4.  It is found that by e-mail dated July 7, 2003 to the respondent, the complainant modified his request, as described in paragraph 2iv, above, asking now for “all e-mails from Jim Cetran that have anything to do with the Police Chief recruitment process, any e-mails that pertain to the Human Resources position and all e-mails that he [Cetran] received or sent to any Town Council member”.  It is also found that in the July 7, 2003 e-mail the complainant further requested that the respondent provide him with a copy of the 2003/2004 adopted budget.

 

5.  It is found that by letter dated July 30, 2003, the respondent provided the complainant with copies of records responsive to his request for the 2003/2004 budget.

 

6.  It is also found that between July 14 and September 5, 2003, the complainant and the respondent exchanged several e-mails concerning his requests, in which the complainant expressed dissatisfaction with the amount of time it was taking for the respondent to provide him with the requested e-mails, and in which the respondent apologized for the delay, explained that she was extremely busy and trying to find the time to review the thousands of e-mails involved.

 

7.  It is found that by e-mail dated August 13, 2003, the complainant requested that the respondent provide him with an update regarding his requests for e-mails.

 

 8.  Having failed to receive all of the requested records from the respondent, the complainant, by letter dated September 12, 2003, and filed on September 16, 2003, appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI”) by denying him a copy of all the requested records.  

 

9.  Section 1-200(5), G.S., provides:

 

 “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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 … (3) receive a copy of such records in accordance with 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.  Section 1-211(a), G.S., further provides that:

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made. 

12.  It is concluded that to the extent the respondent maintains records, responsive to the complainant’s requests, such records are public records, within the meaning of §§1-200(5), 1-210(a) and 1-211(a), G.S. 

13.  With respect to the complainant’s request as described in paragraph 2i, above, it is found that the respondent provided the complainant with records responsive to such request and the complainant acknowledged at the hearing in this matter that he is satisfied that the respondent has complied with such request.

14.  With respect to the request as described in paragraph 2ii, above, the complainant contends that the respondent provided him with some e-mails but not all.  It is found that sometime after receipt of the complainant’s request, the respondent obtained e-mails responsive to such request from Ms. Czernicki, which e-mails the respondent forwarded to her counsel on or about August 25, 2003 for review.  It is found that the e-mails were reviewed by counsel and returned to the respondent on or about September 9, 2003.  It is found that the e-mails were then sent to the complainant after September 9, 2003, and that the complainant received them on or about September 18, 2003.

15.  It is also found that the respondent did not provide the complainant with six e-mails, which the respondent claims are exempt from disclosure.  Following the close of the hearing in this matter the respondent submitted the six e-mails to the Commission for an in camera inspection.  The in camera records have been designated IC 2003-341-1 through 6, for identification purposes.

16.  No evidence or legal argument was presented at the hearing in this matter with respect to the in camera records.  However, the index submitted to the Commission along with the in camera records identify “caucus” as the basis for withholding IC 2003-341-1, and attorney-client privilege for withholding IC 2003-341-2 through 6, inclusive.  It is well-established Connecticut law that the burden of estab­lishing the applicability of an exemption clearly rests upon the party claiming the exemption.  "This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel.  Rather, a sufficiently detailed record must reflect the reasons why an exemp­tion applies to the materials requested." New Haven v. Freedom of Information Commission, 205 Conn. 767, 776 (1988).

17.  With respect to the claim that IC 2003-341-1 is exempt from public disclosure based on “caucus”, it is found that the respondent failed to even explain what that exactly means. 

18.  It is concluded that the respondent failed to prove that IC 2003-341-1 is a record that is exempt under the FOI Act.

19.  With respect to the claim of exemption pursuant to the attorney-client privilege, §1-210(b)(10), G.S., permits the nondisclosure of  “communications privileged by the attorney-client relationship.”

20.    Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, 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), G.S., 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.  It is found that the respondent provided no evidence, and therefore failed to prove that IC 2003-341-2 through 6, inclusive, are communications transmitted in confidence between attorney and client relating to legal advice sought by the client, within the meaning of §52-146r(2), G.S. 

 

24.  Consequently, it is concluded that IC 2003-341-2 through 6, inclusive, are not exempt pursuant to §1-210(b)(10), G.S.

25.  Finally, with respect to the request as described in paragraph 2ii, above, it is found that some e-mails which may have been responsive to the complainant’s request were not provided to him because Ms. Czernicki was using her personal home computer to communicate officially with town officials and such home computer was set to automatically delete e-mail messages after a certain period of time.  Ms. Czernicki was therefore, unable to retrieve e-mails earlier than April 2003.  Ms. Czernicki indicated at the hearing in this matter that she is now aware that e-mails relating to the conduct of the public’s business are public records and should be retained.  It is concluded that to the extent Ms. Czernicki’s computer contained e-mails that were responsive to the complainant’s request, such e-mails were public records within the meaning of §§1-200(5) and 1-211(a), G.S.  

26.  With respect to the request as described in paragraph 2iii, above, the complainant contends that the respondent has not provided him with any of the requested records.  It is found that sometime during August, 2003 the respondent contacted Mr. O’Connor, former Deputy Mayor of the town and inquired about e-mails responsive to the complainant’s request.  It is found that Mr. O’Connor indicated to the respondent that he had no records responsive to the complainant’s request.  At the hearing in this matter the complainant testified that he was informed on or about April 16, 2004 that Mr. O’Connor had apparently erased all e-mails from his computer prior to turning it in to his employer.  No evidence was offered by the respondent to indicate the contrary.  Consequently, the Commission may draw a negative inference against the respondent for her failure to provide any evidence to clarify this matter.   

27.  It is concluded that to the extent Mr. O’Connor’s computer contained e-mails that were responsive to the complainant’s request, such e-mails were public records within the meaning of §§1-200(5) and 1-211(a), G.S. 

28.  With respect to the request as described in paragraph 2iv, above, it is found that the respondent first contacted the town’s Information Services Director, and ultimately Chief Cetran directly to inquire about e-mails that might be responsive to the request.  Chief Cetran testified at the hearing in this matter that he has no e-mails responsive to the complainant’s request.  It is found based upon such testimony that no e-mails responsive to such request exist.  It is further found that in April 2004, the respondent informed the complainant that she had no e-mails responsive to his requests for e-mails concerning Chief Cetran.

29.  With respect to the request as described in paragraph 2v, above, it is found that the respondent provided records responsive to such request to the complainant and he is satisfied with the provision of access to such records.

30.  With respect to the requests as described in paragraph 2vi, and 2vii, above, it is found that the respondent mistakenly believed that the complainant had narrowed such requests by his e-mail to the respondent dated July 7, 2003, and described in paragraph 4, above.  However, it is found that the July 7, 2003 e-mail only modified the complainant’s original request regarding e-mails concerning Chief Cetran, described in paragraph 2iv, above.  It is found that the July 7, 2003 e-mail did not modify the complainant’s original requests for records pertaining to Mr. LaBonte and Mr. Pentalow, as described in paragraph 2vi and 2vii, above.  It is found that by e-mail dated November 4, 2003, the respondent contacted Mr. LaBonte and Mr. Pentalow and asked them to search their records for any e-mails that are responsive to the complainant’s requests.  It is found that they indicated they did not have any such e-mails.  It is further found that in April 2004, the respondent informed the complainant that she had no e-mails responsive to his requests for e-mails concerning Mr. LaBonte and Mr. Pentalow.  At the hearing in this matter Mr. LaBonte testified that he has no e-mails responsive to the complainant’s requests.  Such testimony was not credible.

31.  With respect to the records provided to the complainant by the respondent, it is found that, with the exception of the records described in paragraphs 3 and 5 above, the respondent’s overall provision of access to the records requested by the complainant was not prompt, within the meaning of §1-210(a), G.S., and therefore she violated such provision.  

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 IC 2003-341-1 through 6, inclusive.

 

2.  Forthwith, the respondent shall ensure that a thorough search of the e-mail records of Mr. LaBonte and Mr. Pentalow is conducted, and any e-mails that exist shall be immediately retrieved and provided to the complainant.  If none exist, the respondent shall provide the complainant with a notarized affidavit indicating that such search was conducted and that no e-mails responsive to the complainant’s requests, as described in paragraphs 2vi and 2vii, of the findings above, exist.

 

3.  With respect to the e-mails automatically deleted by Ms. Czernicki’s home computer as well as the e-mails deleted by Mr. O’Connor, the respondent shall forthwith use her best efforts to have the computers in question examined with a view to retrieving and restoring the deleted e-mails.  All e-mails retrieved and restored that are responsive to the complainant’s requests, as described in paragraphs 2ii and 2iii, of the findings above, shall be provided to the complainant.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 8, 2004.

 

 

___________________________________

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:

 

Roy R. Pinette

140 Mallard Drive

Avon, CT 06001

 

Town Manager,

Town of Wethersfield

c/o Duncan J. Forsyth, Esq.

Halloran & Sage LLP

One Goodwin Square

225 Asylum Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-341FD/paj/9/9/2004