FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on June 16, 2005, at which time the complainant and the respondents appeared and presented 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.  It is found that, by letter dated December 29, 2004, the complainant requested, through counsel, that the respondents provide him with a copy of Andre Grandbois’ “personal” file (hereinafter “requested records”).

 

3.  It is found that, by letter dated January 3, 2005, the respondent town manager informed the complainant that some of the requested records are exempt from disclosure pursuant to §1-210(b)(2), G.S., and that the respondent town manager would therefore be notifying Grandbois to inform him of the request and to give him an opportunity to object to the disclosure of the records.

 

4.  It is found that, subsequent to the respondent town manager notifying Grandbois of the complainant’s request, Grandbois, by letter dated January 10, 2005, objected to the disclosure of the requested records.  

 

5.  It is found that, by letter dated January 13, 2005, the respondent town manager notified the complainant that in light of Grandbois’ objection to disclosure, he could not disclose the requested records to the complainant.

 

6.  Having failed to receive the requested records, the complainant, by letter of complaint dated January 20, 2005, and filed on January 24, 2005, appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him a copy of the requested records.  The complainant requested that the Commission impose a civil penalty upon the respondents.

 

7.  At the hearing in this matter, the parties informed the Commission that Grandbois had recently withdrawn his objection to disclosure of the records at issue and therefore, on June 15, 2005 the respondents provided the complainant with a copy of all records responsive to his request, except a few.  The complainant then informed the hearing officer that only the records not yet provided to him remain at issue in this appeal.  Consequently, the Commission will only address such records in this decision (hereinafter “in camera records”).  The complainant also withdrew his request for a civil penalty at that time.

 

8.  Following the close of the hearing in this matter, the respondents provided the Commission with the in camera records for review.  Such records consist of 24 pages, which have been marked for identification purposes as IC 2005-032-1 through 24.

 

9.  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 … (3) receive a copy of such records in accordance with section 1-212. ….  [Emphasis added].

 

10.  It is concluded that the in camera records are public records within the meaning of §1-210(a), G.S.

 

11.  The respondents contend that in camera records IC 2005-032-1 through 10 are exempt from disclosure pursuant to §1-210(b)(10), G.S.

 

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

 

13.  With respect to the §1-210(b)(10), G.S., claim of exemption, the applicability of such exemption 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.

 

14.  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. . . .[Emphasis added.]

 

15.  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.

 

16.  Upon review of in camera records IC 2005-032-1 through 10, it is found that the respondents failed to prove that such records constitute confidential communications transmitted between the respondents and their attorney with respect to legal advice sought by the respondents.

 

17.   It is also found that in camera record IC 2005-032-5 contains a provision restricting disclosure of such record.  However, with respect to a confidentiality clause contained in an agreement, this Commission has consistently held that such a clause found in an agreement between a public agency and a public employee does not constitute an exemption to disclosure under the FOI Act.  See e.g., docket #FIC 1992-028, Robert A. Frahm and the Hartford Courant against Superintendent, Bloomfield Public Schools and Bloomfield Education Association (Final Decision dated November 23, 1992). Moreover, this Commission takes administrative notice that it has previously ruled when addressing the disclosure of a settlement agreement between a public agency and a public employee, that such agency may not simply contract away the public's right to know under the FOI Act by including a provision prohibiting any party to the agreement from disclosing its terms.   See e.g. contested case #s FIC 2001-530, David Critchell and Waterbury Republican-American v. Corporation Counsel, City of Torrington (Final Decision dated June 26, 2002), and FIC 94-063, Carol L. Panke v. Bloomfield Town Manager (Final Decision dated August 10, 1994).

 

18.  It is therefore, concluded that the respondents failed to prove that in camera records IC 2005-032-1 through 10, inclusive, are communications privileged by the attorney-client relationship, within the meaning of §1-210(b)(10), G.S., and therefore such records are not exempt from disclosure.

 

19.  It is concluded that the respondents violated §1-210(a), G.S., by denying the complainant access to in camera records IC 2005-032-1 through 10. 

 

20.  The respondents further contend that in camera records IC 2005-032-11 through 24 are exempt from disclosure pursuant to §1-210(b)(3)(B), (E) and (G), G.S.

 

21.  In relevant part, §1-210(b)(3), G.S., permits the nondisclosure of:

 

Records 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 … (B) signed statements of witnesses … (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes … (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

22. Section 1-216, G.S., provides, in relevant part:

 

records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

23.  With respect to in camera records IC 2005-032-11 through 24, it is found that

such records constitute records of a law enforcement agency not otherwise available to the public which records were compiled in connection with the detection or investigation of crime.

 

24.  It is also found that disclosure of in camera records IC 2005-032-11 through 24 would not be in the public interest because it would result in the disclosure of uncorroborated allegations subject to destruction pursuant to section 1-216.  It is further found that portions of in camera records IC 2005-032-11 through 24 contain signed statements of witnesses, within the meaning of §1-210(b)(3)(B), G.S., and arrest records of a juvenile, within the meaning of §1-210(b)(3)(E), G.S.

 

25.  Consequently, it is concluded that in camera records IC 2005-032-11 through 24 are exempt from disclosure within the meaning of §1-210(b)(3)(B), (E) an (G), G.S., and therefore, the respondents did not violate the FOI Act as alleged in the complaint when they failed to permit the complainant access to inspect such records.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  Forthwith, the respondents shall provide the complainant with a copy of in camera records IC 2005-032-1 through 10.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2005.

 

________________________________

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:

 

Ronald Pavano

c/o Kenneth J. Laska, Esq.

63 East Main Street

Plainville, CT 06062

 

Robert Lee, Town Manager, Town

of Plainville; and Daniel Coppinger,

Chief, Police Department, Town of

Plainville

c/o Lisa S. Lazarek, Esq.

21 Oak Street, Suite 601

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-032FD/paj/12/20/2005