FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on April 3, 2006, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents submitted for in camera inspection the record described in paragraph 4 of the findings, below.

 

            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 of complaint filed January 25, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for certain public records.

 

3.  It is found that, beginning with a memorandum dated November 9, 2005, the complainant requested “all written documents” pertaining to an incident that occurred among officers of the Middletown Police Department on October 31, 2005. 

 

4.  It is found that the respondents ultimately provided the requested records, with the exception of a November 23, 2005 memorandum from Middletown City Attorney Trina Solecki to the respondent Pessina (the “Memorandum”).

 

5.  It is found that the complainant requested on December 19, 2005 that the respondents provide him with a copy of the Memorandum.

6.  It is found that the respondent Pessina denied the complainant’s request on December 28, 2005, asserting that the Memorandum was a “privileged attorney-client communication.”

 

7.  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.

 

8.  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 (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.    

 

9.  It is concluded that the Memorandum is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

10. The respondent first contends that the Memorandum is exempt from disclosure pursuant to §1-210(b)(10), G.S., which provides that disclosure is not required of “communications privileged by the attorney-client relationship.”

 

11.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  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.

12.  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. . . .

13.  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.

14.  It is found that the Memorandum is a written communication transmitted between an employee of the city of Middletown, the respondent Pessina, acting in the performance of his duties and within the scope of his employment, and Middletown City attorney Solecki relating to legal advice sought by Pessina.  It is also found that attorney Solecki sought to keep her advice confidential.

15.  However, it is also found that the respondent Pessina actually disclosed the substance of the advice he sought in his non-confidential request to attorney Solecki.  In a memorandum to Solecki dated November 3, 2005, Pessina recites that attorney Solecki had previously:

advised our department, that during the pendency of a lawsuit filed by Sergeant Timbro against Officers Morron & Hertler “The officers not be placed under the plaintiff’s direct command during the pendency of the lawsuit.”

16.  In that November 3, 2005 memorandum, the respondent Pessina further asked attorney Solecki “that you review the matter to reaffirm that our interpretation of your [advice] is accurate.”

17.  It is further found that the respondent Pessina also had previously, in an October 20, 2004 memorandum to all commanding officers, recited “the recommendation from City Attorney Trina Solecki that ‘the Officers [Morron and Hertler] not be placed under the plaintiff’s (Sergeant Timbro) direct command during the pendency of this lawsuit.’”

18.  It is also found that the Memorandum contains no legal advice beyond what was publicly recited by the respondent Pessina in his October 20, 2004 and November 3, 2005 memoranda.  While the Memorandum does briefly recite certain facts not directly related to Pessina’s request for advice, no advice is given concerning these facts, and the facts themselves are public information, not transmitted in confidence to attorney Solecki.

19.  It is therefore found that the respondent Pessina waived the attorney-client privilege concerning the advice he sought, demonstrating that he had no expectation that the Memorandum would be confidential.

20.  The respondent additionally argues that the Memorandum is permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S.

21.  Section 1-210(b)(4), G.S., provides that disclosure is not required of “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party.”

22.  It is found that, at all times material, civil litigation was pending against the City of Middletown and the respondents.

23.  It is found, however, that the limited advice given in the Memorandum can not meaningfully be considered to relate to “strategy” or “negotiations” with respect to the pending litigation.

24.  Moreover, it is found that the respondent Pessina waived any claim of exemption pursuant to §1-210(b)(4), G.S., in precisely the same way that he waived the attorney-client privilege.

25.  It is therefore concluded that the respondents violated §1-210(a), G.S., by failing to disclose the requested Memorandum.

 

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

 

            1.  The respondent shall forthwith provide the complainant with a copy of the Memorandum.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 2006.

 

________________________________

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:

 

Glenn C. Morron

c/o Craig T. Dickinson, Esq.

Madsen, Prestley & Parenteau, LLC

44 Capitol Avenue, Suite 201

Hartford, CT 06106

 

J. Edward Brymer, Chief,

Police Department, City of Middletown; and

Phillip Pessina, Deputy Chief,

Police Department, City of Middletown

c/o James M. Sconzo, Esq.

175 Powder Forest Drive, Suite 201

Simsbury, CT 06089-9658

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-038FD/paj/12/19/2006