FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on December 17, 2009, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  A Report of Hearing Officer, dated February 11, 2010, was issued on February 23, 2010, in the above-captioned matter, and the Commission considered such report at its regular meeting on April 14, 2010.  At such meeting, the Commission voted to reopen the hearing to permit the respondent Rose the opportunity to provide, for in camera inspection, those records he had previously refused to provide to the hearing officer for such inspection.

 

On May 17, 2010, the respondent Rose submitted additional records for in camera inspection.

 

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 email dated September 1, 2009, the complainant requested to review the following:

 

Any and all documentation regarding the termination of Hartford Police Officer Matthew Secore.  Including, but not limited to any and all internal investigations, correspondence, e-mails, correspondence regarding Labor Board hearings and rulings, appeals of any Labor Board/mediation rulings as well as any and all records of any funds spent or billed to the City for the use of outside counsel in this matter.

 

            3.  It is found that, by email dated September 2, 2009, the respondent Rose replied:

 

…this is to acknowledge your email dated 9/1/09  re FOI-able documents related to the Secore case.  The matter is still in litigation and I will review and comply with your request in that context.  For the record, there is no outside counsel concerned with the Secore matter.  I will review the law and the documents and to the extent there are disclosable materials I will gather them and advise you that they are available for inspection.  I am sending your request to such other City offices, agencies or departments as may be in possession of documents relevant to your request.  When I notify you that such disclosable documents are available, you may call…to schedule a time to review same.  Any copies you request will be billed at the statutory per page rate.

 

4.  It is found that, by email dated September 17, 2009, the complainant asked the respondent Rose for an “update on where this request stands,” as the complainant had not, as of that date, received any of the requested records from the respondents.

 

5.  It is found that, by email dated September 17, 2009, the respondent Rose replied:

 

It is my opinion that since the Secore case is a matter pending and actively being litigated and, given the fact that the file contains materials covered by the attorney client privilege, the records pertaining to that matter are protected from disclosure by the provisions of the General Statutes, Sec. 1-210.

 

6.  By letter of complaint, sent via email on September 19, 2009, and received on September 21, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request for records described in paragraph 2, above.  In his complaint, the complainant requested that “the maximum civil penalties be assessed against Mr. Rose and any others involved in this matter.”

 

            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 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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

            9.   Section 1-212(a), 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.”

 

10.  It is found that the records described in paragraph 2, above, are public records within the meaning of §1-200(5), G.S., and therefore must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

11.  It is found that, after an incident involving Officer Secore, the respondent City of Hartford terminated Officer Secore’s employment with the Hartford Police Department, and thereafter, Officer Secore filed a grievance with the State Board of Mediation and Arbitration (“Board”), claiming the city did not have just cause to fire him.  It is found that, after a hearing, the Board issued its decision reversing the termination, and issuing a suspension instead.  It is further found that the respondent City of Hartford appealed the Board’s decision to the superior court, where such case was pending at the time of the hearing in this matter.

            12.  At the hearing in this matter, the complainant testified that, although he had not received any of the requested records from the respondents, he obtained, through other sources, the following records he believed are maintained by the respondents: 

 

·         a Hartford Police Department Internal Affairs Report, dated July 6, 2007, concerning Officer Secore;

 

·         a letter from the City of Hartford to Officer Secore, dated January 31, 2008, with an interdepartmental memorandum, dated January 25, 2008, attached;

 

 

·         a legal brief filed with the Board, on behalf of the Hartford Police Union, dated September 25, 2008;

 

·         a legal brief filed with the Board, on behalf of the City of Hartford, dated September 26, 2008;

 

·          the Arbitration Award, issued by the Board, dated January 16, 2009 (“Arbitration Award”). 

 

            13.  It is found that the respondents maintain the records described in paragraph 12, above, and that such records are responsive to the request described in paragraph 2, above. 

 

            14.  At the hearing in this matter, the respondent Rose stated that his office maintains two large “redwell” files full of records responsive to the request, described in paragraph 2, above.[1]

 

            15.  After the hearing in this matter, the hearing officer issued an order, dated December 18, 2009, requiring the respondents to submit to the Commission for in camera review, the records being claimed exempt from disclosure, along with an index listing each record and the specific exemption being claimed for each such record, on or before January 13, 2010.  At the respondents’ request, an extension of time was granted to file such submission, and certain in camera records were filed with the Commission on January 15, 2010.  It is found that such in camera records consisted of 13 documents, totaling 90 pages:  two (2) emails, four (4) letters, two (2) portions of a transcript or transcripts containing handwritten notes, three (3) memoranda containing handwritten notes, a list of direct examination questions, and an incomplete copy of the Arbitration Award, containing handwritten notes, all concerning the Secore matter.  Such in camera records shall be designated herein as IC 2009-551-001A through IC 2009-551-013A.   

 

            16.  It is found that the records described in paragraph 12, above, were not included with the in camera submission and were not claimed exempt from disclosure on the in camera index filed with the Commission on January 15, 2010.

 

            17.  The respondents contend that the in camera records, described in paragraph 15, above, are exempt from disclosure pursuant to §§1-210(b)(10), and 1-210(b)(4), G.S. 

 

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

19.   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.

20.  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. . . .

 

21.   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.

22.   The respondents claim, on the index to the in camera records, that IC 2009-551-001A, and IC 2009-551-010A, are exempt from disclosure pursuant to §1-210(b)(10), G.S. 

23.  After careful review of IC 2009-551-001A, which is an email, dated May 23, 2008, it is found that the respondent Rose was acting in a professional capacity for the agency; and further, that the communication was made between the respondent Rose and a current member of the public agency.  However, it is also found that it cannot be determined by inspection of the document alone, that the communication relates to legal advice sought by the agency from the respondent Rose; or that the communication was made in confidence.  Further, it is found that the respondents offered no evidence at the hearing in this matter regarding the foregoing.  It is therefore found that the respondents failed to prove that IC 2009-551-001A is exempt from disclosure pursuant to §1-210(b)(10), G.S.

24.  After careful review of IC 2009-551-010A, which is a memorandum, dated May 20, 2008, it is found that the respondent Rose was acting in a professional capacity for the agency; that the communication was made between the respondent Rose and a member of the public agency; and that the communication relates to legal advice sought by the agency from the respondent Rose.  However, it is also found that it cannot be determined by inspection of the document alone, that the communication was made in confidence.  It is further found that the respondents offered no evidence at the hearing in this matter regarding the foregoing.  It is therefore found that the respondents failed to prove that IC 2009-551-010A is exempt from disclosure pursuant to §1-210(b)(10), G.S.

25.   With regard to the §1-210(b)(4), G.S. claim of exemption, such provision permits an agency to withhold  “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”

 

            26.   “Pending litigation” is defined in §1-200(9), G.S., as “(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.”

 

27.  It is found that the respondent City of Hartford’s pending appeal of the Board’s decision in the superior court at the time of the hearing in this matter constitutes “pending litigation” within the meaning of §1-200(9), G.S.

 

28.  Our Supreme Court has determined, relying on Webster’s Third New International Dictionary, that “strategy” is defined as “the art of devising or employing plans or strategems.”  City of Stamford v. Freedom of Information Commission, 241 Conn. 310, 318 (1997).  Further, the Court stated that “negotiation is defined as the action or process of negotiating,” and “negotiate is variously defined as:  to communicate or confer with another so as to arrive at the settlement of some matter:  meet with another so as to arrive through discussion at some kind of agreement or compromise about something; to arrange for or bring about through conference and discussion: work out or arrive at or settle upon by meetings or agreements or compromises; and to influence successfully in a desired way by discussion and agreements or compromises.”  (Internal quotations omitted).

 

29.  The respondents claim that IC 2009-551-002A through IC 2009-551-004A and IC 2009-551-006A, which are letters and an email between counsel involved in the Secore matter, are exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

30.  After careful review of the in camera records described in paragraph 29, above, it is found that such records do not pertain to any strategy or negotiation with respect to the pending litigation described in paragraph 27, above.  Rather, it is found that such records pertain to administrative matters.  It is therefore found that such records are not exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

31.  Next, the respondents claim that IC 2009-551-005A, which is a letter dated September 8, 2009, is exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

32.  After careful review of the in camera record described in paragraph 31, above, it is found that only the second and third paragraphs of such letter pertain to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.  It is therefore found that only the second and third paragraphs of such letter are exempt from disclosure pursuant to §1-210(b)(4), G.S.   

 

33.  Next, the respondents claim that IC 2009-551-007A and IC 2009-551-008A, are exempt from disclosure pursuant to §1-210(b)(4), G.S.   It is found that such records consist of excerpts of a transcript, or transcripts, of a proceeding, involving Officer Secore, which proceeding is not identified anywhere on, or in, such transcript(s).  It is further found that portions of IC 2009-551-007A and IC-551-008A are highlighted and contain handwritten notes of the respondent Rose.

 

34.  After careful review of the in camera records described in paragraph 33, above, it is found that such records, as highlighted, along with the handwritten notes, pertain to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.   It is further found that such records could not be redacted in such a way as to prevent disclosure of the respondents’ strategy.   It is therefore found that IC 2009-551-007A and IC 2009-551-008A, are exempt from disclosure in their entirety pursuant to §1-210(b)(4), G.S. 

 

35.  Next, the respondents claim that IC 2009-551-009A is exempt from disclosure pursuant to §1-210(b)(4), G.S.  It is found that such record consists of a memorandum, dated September 2, 2008.

 

36.  After careful review of the in camera record described in paragraph 35, above, it is found that such record pertains to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.   It is therefore found that IC 2009-551-009A, is exempt from disclosure pursuant to §1-210(b)(4), G.S. 

 

37.  Next, the respondents claim that IC 2009-551-010A and IC 2009-551-011A are exempt from disclosure pursuant to §1-210(b)(4), G.S. 

 

38.  After careful review of the in camera records described in paragraph 37, above, it is found that such records pertain to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.   It is therefore found that IC 2009-551-010A and IC 2009-551-011A, are exempt from disclosure by virtue of §1-210(b)(4), G.S. 

 

39.  Next, the respondents claim that IC 2009-551-012A is exempt from disclosure pursuant to §1-210(b)(4), G.S.  It is found that such record contains handwritten notes, some of which are not readable due to copying error. 

 

40.  After careful review of the in camera record described in paragraph 39, above, it is found that only the handwritten notes contained in such record pertain to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.  It is therefore found that only the handwritten notes contained in IC 2009-551-012A, are exempt from disclosure by virtue of §1-210(b)(4), G.S. 

   

41.  Next, the respondents claim that IC 2009-551-013A is exempt from disclosure pursuant to §1-210(b)(4), G.S.  It is found that such record contains handwritten notes. 

 

42.   After careful review of the in camera record described in paragraph 41, above, it is found that only the handwritten notes contained in such record pertain to strategy and negotiation with respect to the pending litigation described in paragraph 27, above.  It is therefore found that only the handwritten notes contained in IC 2009-551-013A, are exempt from disclosure by virtue of §1-210(b)(4), G.S. 

 

            43.  It is found that the respondents do not maintain any records responsive to the request for “records of any funds spent or billed to the City for the use of outside counsel in this matter.”  It is therefore concluded that the respondents did not violate the FOI Act with respect to such request.

 

44.  It is found that, in addition to the records described in paragraph 12, above, and the records provided to the Commission for in camera review, described in paragraph 15, above, the respondents maintain many records responsive to the request described in paragraph 2, above, copies of which were neither provided to the complainant, nor provided to the Commission for in camera inspection, as ordered.  It is found that such records are, at least in part, those described in paragraph 14, above.   

 

            45.  As noted previously, at its April 14, 2010 regular meeting, the Commission reopened the hearing in this matter for the purpose of permitting the respondent Rose to submit for in camera inspection those records he had previously refused to provide to the hearing officer for such inspection.  By notice dated April 20, 2010, the Commission ordered the Respondent Rose “to submit the records being claimed exempt from disclosure for an in camera inspection…such submission shall include all records responsive to the request described in paragraph 2 of the Report of Hearing Officer, dated February 11, 2010, including the records contained in the redwell files described in paragraph 14 of the Report, and records contained in any other files previously described by the respondent Rose as ‘his’, ‘private’ or ‘attorney’s’ files.”  The order further stated that “such submission shall NOT include any records previously submitted to the Commission for in camera review in this matter.”

 

46.  On May 16, 2010, the respondent Rose submitted additional records for in camera inspection.  It is found that such records include copies of pleadings filed with the court and with the Board, hearing transcripts, court decisions, subpoenas, and correspondence, all of which the respondent Rose claims are exempt from disclosure pursuant to §§1-210(b)(4) and/or 1-210(b)(10), G.S.  It is further found that such submission also includes many records for which no exemption is claimed, as well as records previously submitted to the Commission for in camera inspection, in contravention of the order dated April 20, 2010.  Such in camera records shall be designated herein as IC 2009-551-001B through IC 2009-551-079B.

 

47.  It is found that the following records were submitted by the respondent Rose for in camera inspection on May 16, 2010,, yet are not claimed to be exempt from disclosure:  IC 2009-551-024B (Hartford PD Policy and Procedure No. 7-27), IC 2009-551-032B (letter), IC 2009-551-033B (fax cover sheet), IC 2009-661-036B (court notice), IC 2009-551-038B (scheduling notice), IC 2009-551-039B through IC 2009-551-049B (letter, notice, resume of Chief Roberts, termination letter, letter with attachment, interdepartmental memo dated 9/14/93, discipline review form, IAD Report, HPD Code of Conduct, printout from judicial branch website, notice), IC 2009-551-053B through IC 2009-551-058B (civil complaint filed in US District Court, notice, letter with attachment, termination letter, letter with attachment), IC 2009-551-060B through IC 2009-551-062B (letter with invoice attached, fax cover sheet, fax cover sheet with notice attached), IC 2009-551-066B (attachments only, consisting of agreement between city and police union, and arbitration award dated 1/16/09), IC 2009-551-070B (news article), IC 2009-551-072B through IC 2009-551-075B (state statute, notice, grievance, interdepartmental memo dated 1/25/08, letters), IC 2009-551-077B (interdepartmental memo dated 1/25/08 with attachments, including police incident reports and agreement between city and police union).  It is further found that such records are responsive to the request described in paragraph 2, above.   The Commission notes that IC 2009-551-031B, IC 2009-551-042B, IC 2009-551-46B, IC 2009-551-066B (arbitration award, dated 1/16/09) and IC 2009-551-077 are the records described in paragraph 12, above.

 

48.  Based upon the foregoing, it is concluded that the respondents violated the FOI Act by denying the complainant access to the records described in paragraph 47, above.   

 

49.  The respondents claim the following in camera records are exempt from disclosure pursuant to §1-210(b)(4), G.S.:  IC 2009-551-001B through IC 2009-551-010B, IC 2009-551-011B (pages 1-8, 10-16, 26, 30, 32, 38, 39, and 48), IC 2009-551-012B through IC 2009-551-023B, IC 2009-551-025B through IC 2009-551-031B, IC 2009-551-034B, IC 2009-551-035B, IC 2009-551-037B, IC 2009-551-050B through IC 2009-551-052B, IC 2009-551-059B, IC 2009-551-063B through IC 2009-551-069B, IC 2009-551-071B, IC 2009-551-076B, IC 2009-551-078B, and IC 2009-551-079B.

 

50.  After careful review of the in camera records described in paragraph 49, above, it is found that the following records, or portions thereof,  pertain to strategy or negotiation with respect to the pending litigation, described in paragraph 27, above:  IC 2009-551-011B (pages 1-8, 10-16, 26, 30, 32, 38, 39, and 48), IC 2009-551-014B (pages containing certain handwritten notes only, ie. page 2, 10, 19, and 21),  IC 2009-551-015B (page 33 only), IC 2009-551-018B (handwritten notes on page 1 only), IC 2009-551-031B (handwritten notes only), IC 2009-551-069B, IC 2009-551-079B.  It is therefore found that such records, or portions thereof, are exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

51.  It is found, however, after careful review of the in camera records described in paragraph 49, above, that the following records do not pertain to any strategy or negotiation with respect to the pending litigation described in paragraph 27, above:  IC 2009-551-001B through IC 2009-551-010B, IC 2009-551-012B, IC 2009-551-013B, IC 2009-551-016B, IC 2009-551-017B, IC 2009-551-019B, IC 2009-551-020B, IC 2009-551-021B, IC 2009-551-022B, IC 2009-551-023B, IC 2009-551-025B, IC 2009-551-026B, IC 2009-551-027B, IC 2009-551-028B, IC 2009-551-029B, IC 2009-551-030B,  IC 2009-551-034B, IC 2009-551-035B, IC 2009-551-037B, IC 2009-551-050B, IC 2009-551-051B, IC 2009-551-052B, IC 2009-551-059B, IC 2009-551-063B, IC 2009-551-064B, IC 2009-551-065B, IC 2009-551-066B, IC 2009-551-067B, 2009-551-068B, IC 2009-551-071B, IC 2009-551-076B, and IC 2009-551-078B.  It is therefore found that such records are not exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

52.  The respondents claim the following in camera records are exempt from disclosure pursuant to §1-210(b)(10), G.S.:   IC 2009-551-012B, IC 2009-551-027B, IC 2009-551-030B, IC 2009-551-035B, IC 2009-551-051B through IC 2009-551-052B, IC 2009-551-078B[2] and IC 2009-551-079B[3].

 

53.  After careful review of the in camera records described in paragraph 52, above, it is found that the respondents failed to prove that such records are records of   communications related to legal advice sought by the agency from the respondent Rose; or that the communications were made in confidence.  It is therefore found that none of the records described in paragraph 52, above, is exempt from disclosure pursuant §1-210(b)(10), G.S.

 

54.  It is concluded, based upon the foregoing, that the respondents violated §§1-210(a) and 1-212(a), G.S., in denying access to the records described in paragraph 52 and 51, above, and to those portions of the records described in paragraph 50, above, found not to be exempt from disclosure.

 

55.  With regard to the complainant’s request for civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

56.  It is found that the respondent Rose, acting in his capacity as corporation counsel, is the individual who made the decision to withhold the records, or portions thereof, described in paragraphs 12, 23, 30, 32, 40, 42, 50, 51 and 52 above, from the complainant, and that therefore, the respondent Rose is the official directly responsible for the denial of the right to inspect the records, or portions thereof, described in paragraphs 12, 23, 30, 32, 40, 42, 50, 51 and 52 above, as created by §§1-210(a) and 1-212(a), G.S.  It is further found that such denial was without reasonable grounds.

 

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

 

            1.  The respondents shall forthwith provide the complainant with copies of the records described in paragraphs 12, 23, 30, 32, 40, 42, 47, 50, 51, and 52 above, free of charge. 

 

            2.   In complying with paragraph 1, above, of the order, the respondents may redact only those portions of the records described in paragraphs 32, 40, 42, and 50, above, found to be exempt from disclosure by this Commission.

 

            3.  The respondent Rose shall forthwith remit a civil penalty in the amount of $200.00 (two hundred dollars) to the Commission.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 8, 2010.

 

 

__________________________

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:

 

Kevin Brookman

120 Sigourney Street

Hartford, CT 06105

 

John Rose, Corporation Counsel,

Office of the Corporation Counsel,

City of Hartford; and

City of Hartford

c/o John Rose, Jr., Esq.

Office of the Corporation Counsel

550 Main Street

Hartford, CT 06103

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-551FD/paj/9/13/2010