FIC2008-015

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Preston D. Shultz and Citizens for Prudent Spending,
		Complainants
	against		Docket #FIC 2008-015
Superintendent of Schools, Woodstock Public Schools; and Board of Education, Woodstock Public Schools,
		Respondents	September 10, 2008

The above-captioned matter was heard as a contested case on June 5, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the matter was consolidated with Docket #FIC 2008-068; Preston D. Shultz and Citizens for Prudent Spending v. Superintendent of Schools, Woodstock Public Schools and Woodstock Public Schools.

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 4, 2007, the complainants requested that the respondents provide them with access to, and a copy of, certain notes taken by the Chairperson of the respondent Board of Education, Lindsay Paul, during a State Department of Education meeting that took place on June 19, 2006.

3. It is found that, by letter dated December 6, 2007, the respondents acknowledged the complainants’ request for records.

4. It is further found that the respondents promptly provided a page and a half of Chairperson Paul’s handwritten notes to the complainants, but withheld other notes from the complainants.

5. By letter dated January 1, 2008 and filed January 8, 2008, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) by denying them access to public records.

6. 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.

7. Section 1-210(a), G.S., provides in relevant part that:

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.

8. Section 1-212(a)(1), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

9. It is found that the respondents maintain the records described in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

10. At the hearing on this matter, the respondents contended that the records that they had not disclosed to the complainants were taken by Chairperson Paul during a meeting that was separate and distinct from the State Board of Education Meeting as referenced in paragraph 2, above, and were permissibly exempt from disclosure based on the attorney-client privilege.

11. At the close of the hearing on the matter, the respondents submitted the records described in paragraph 2, above, to the Commission for an in camera inspection (hereinafter the “in camera records”). The in camera records submitted consist of one and one half pages of handwritten notes.

12. Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.”

13. 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.

14. 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. . . .

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. It is found that Chairperson Paul attended two meetings on June 19, 2006—the first meeting took place at the State Department of Education; the second meeting took place at the law firm of the respondents’ attorneys.

17. It is found that the second meeting involved only the respondents and their attorneys.
It is further found that Chairperson Paul took hand written notes at the first meeting. It is further found that when the first meeting concluded, Chairperson Paul proceeded to the second meeting. It is further found that Chairperson Paul continued to take handwritten notes at the second meeting, and did so on the same notepad that she had used in the first meeting.

18. It is found that the purpose of the second meeting was for the respondents to solicit and receive legal advice from their attorneys.

19. It is found that the respondents requested confidential legal advice from their attorneys concerning the respondents’ professional obligations as the Superintendent of Schools and the Board of Education.

20. It is found that Chairperson Paul took notes from the second meeting on the legal advice that was given to the respondents by their attorneys.

21. After a careful review of the in camera records it is found that Chairperson Paul’s notes are a communication related to legal advice sought from a professional legal advisor, in the course of his or her duties, and were related to business under consideration by the respondents. It is further found that the communication that occurred during the second meeting described in paragraph 17, above, was made in confidence. It is found, therefore, that the notes in question constituted a record of a communication privileged by the attorney-client relationship.

22. It is found that the respondents did not waive the privilege.

23. It is found that the FOI Act exempts such record from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.

24. Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainants.

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

1. The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 2008.

____________________________

S. Wilson

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:

Preston D. Shultz and

Citizens for Prudent Spending

c/o Robert L. Skelley, Esq.

Innovative Legal Minds, LLC

952 North Main Street

Danielson, CT 06239

Superintendent of Schools, Woodstock

Public Schools; and Board of Education,

Woodstock Public Schools

c/o Paul M. Shapiro, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103

Board of Education,