FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on August 27, 2010, at which time both the complainants 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)(A), G.S.

 

2.  It is found that by letter dated March 19, 2010, the complainants made a request to the respondent for “materials related to the recent resignation of President Cheryl Norton at Southern Connecticut State University… all correspondence, including emails among university officials regarding President Norton’s job status…any agreement between President Norton and CSU covering her sabbatical and other terms of her departure…correspondence between her and the system office…[and] her two most recent evaluations.” 

 

3.  It is found that, by email dated and filed with the Commission on May 4, 2010, the complainants appealed to the Commission, alleging that the failure of the respondent to provide “documents related to the resignation of President Cheryl Norton at Southern Connecticut State University” violated the Freedom of Information Act (“FOIA”). The complainant Frahm also stated that he had been provided with a copy of the separation agreement.

 

4.  Section 1-210, G.S., states in relevant parts:

 

(a)    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….

 

(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

(1)  Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure;

 

…

 

(10)  Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship;

 

…

 

(e)  Notwithstanding the provisions of subdivision[ ] (1) … of subsection (b) of this section, disclosure shall be required of:

 

 (1)  Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….

 

5.  At the hearing, there was testimony concerning additional records which had already been provided to the complainants. The complainant Frahm stated that he was no longer seeking copies of performance evaluations. The respondent followed by providing the complainants with emails concerning which the respondent no longer claimed any exemption from mandatory disclosure. Finally, the respondent volunteered to provide additional requested records, which it claimed were exempt from mandatory disclosure, to the Commission for an in camera review.

 

6.  The requested records were filed on September 3, 2010. Such records are hereby identified as IC-2010-289-1 through IC-2010-289-5. The index asserted that all records are exempt pursuant to §52-146r, G.S., and that IC-2010-289-2 and IC-2010-289-5 are also exempt pursuant to §1-210(b)(1), G.S.

 

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

 

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

 

 9.  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. . . .

 

10.  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.

 

11.  Based on the in camera inspection, it is found that the substantive email in IC-2010-289-1 is a communication from Cheryl Norton’s attorney to an attorney for the Connecticut State University System. It is not a communication between an attorney for the Connecticut State University System and his or her client. IC-2010-289-1 is part of the negotiation between adverse attorneys, each representing his or her client. The email cover pages (but not the attachments) of IC-2010-289-2 and IC-2010-289-5 are identical in nature to IC-2010-289-1.

    

12.  Based on the in camera inspection, it is found that the attachments behind the email cover pages of IC-2010-289-2 and IC-2010-289-5 are preliminary drafts of the separation agreement between the Connecticut State University System and Cheryl Norton, each marked to show changes from previous drafts. It is also found that these drafts preceded the preparation of the final Separation Agreement, which, as noted at paragraph 3, has been provided to the complainants. The attachments behind the email cover pages of IC-2010-289-2 and IC-2010-289-5 are records of the preliminary, deliberative, pre-decisional process, which preceded formal and informed decision making. It is further found that the respondent determined that the public interest in withholding these attachments clearly outweighed the public interest in disclosure. Finally, concerning the requirements of §1-210(e)(1), G.S., it is found that the drafts of the separation agreement were “prepared by a member of the staff” and were “subject to revision prior to submission to” the Chancellor of the respondent Connecticut State University System. See Shew v. Freedom of Information Commission, 245 Conn. 149, 166-167 (1998), holding that an attorney hired on a contractual basis was indistinguishable from a member of the agency staff.

 

13.  Based on the in camera inspection, it is found that both IC-2010-289-3 and IC-2010-289-4 are email strings which continue the communications commenced in IC-2010-289-2. In paragraph 10, above, IC-2010-289-2 is found not to be a communication between an attorney for the Connecticut State University System and his or her client. However, the emails in both IC-2010-289-3 and IC-2010-289-4 which are not included in IC-2010-289-2 are communications between an attorney for the Connecticut State University System and his or her client in furtherance of the rendition of legal advice.  

 

14.  It is concluded that the requested records are public records within the meaning of §§1-210(a) and 1-212(a), G.S.

 

15.  Based on the findings at paragraph 11, it is concluded that in camera record IC-2010-289-1 is not exempt from mandatory disclosure pursuant to §§52-146r(2) and 1-210(b)(10), G.S.

 

16.  Based on the findings at paragraph 12, it is concluded that the email cover pages of IC-2010-289-2 and IC-2010-289-5 are not exempt from mandatory disclosure pursuant to §§52-146r(2) and 1-210(b)(10), G.S., but that the attachments behind the email cover pages of IC-2010-289-2 and IC-2010-289-5 are preliminary drafts exempt from mandatory exemption pursuant to §1-210(b)(1) and (e)(1), G.S.

 

17.  Based on the findings at paragraph 13, it is concluded that the portions of both IC-2010-289-3 and IC-2010-289-4 which are not included in IC-2010-289-2 are attorney-client privileged communications exempt from mandatory disclosure pursuant to §§52-146r(2) and 1-210(b)(10), G.S.

 

18.  It is finally concluded that the respondent violated the FOIA by withholding IC-2010-289-1 and the email cover pages (but not the attachments) of IC-2010-289-2 and IC-2010-289-5 from the complainants.

 

 

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 IC-2010-289-1 and the email cover pages (but not the attachments) of IC-2010-289-2 and IC-2010-289-5 to the complainants.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Robert Frahm and The Connecticut Mirror

175 Main Street

Hartford, CT  06106

 

State of Connecticut,

Connecticut State University System

c/o David Trainor, Esq.

39 Woodland Street

Hartford, CT  06105

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-289/FD/cac/3/10/2011