FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 28, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  It is found that, by letter dated July 14, 2010, the complainant made a request to the respondents for copy of the following record:

 

The legal opinion that the Board of Education received regarding the payment of the $50,000 in insurance expenses in the 2010-2011 Board of Education budget.

 

3.  It is found that, by letter dated July 19, 2010, the respondents acknowledged the complainant’s request.  It is further found that, in the July 19, 2010 letter, the respondents informed the complainant that the requested record was exempt from disclosure and that therefore the complainant’s request was denied. 

 

4.  By letter of complaint filed August 12, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to respond to its request for records. 

 

5.  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.

 

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

 

7.  Section 1-212(a)(1), G.S., provides in relevant part that:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

8.  It is found that the record described in paragraph 2, above, is a “public record” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless it is exempt from disclosure.

 

9.  It is found that the record at issue is a letter to the Preston Board of Education from its attorney.  It is further found that this letter was generated in response to the Board of Education’s request for advice on a matter having to do with a budgetary matter. 

 

10.  The respondents contend that the requested communication is exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.

 

            11.  In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”

 

12.  Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such law is well set forth in Maxwell v. FOIC, 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.

 

13.  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. . . .

 

14.  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.

 

15.  It is found that the record at issue contains the legal advice that the Preston Board of Education sought from its attorneys.  It is further found that the Board of Education was acting within the scope of its duties with regard to current agency business when it sought and received this advice.  It is further found that the communication was made in confidence.  Finally, it is found that the Board of Education did not waive its attorney-client privilege. 

 

16. It is concluded, therefore, that the record in question constitutes a record of communication privileged by the attorney-client relationship.

 

17. Based upon the foregoing, it is concluded that the respondents did not violate the disclosure provisions of the FOI Act as alleged by the complainant.

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 June 8, 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:

 

Board of Finance, Town of Preston

c/o Norman Gauthier

16 Julian Drive

Preston, CT  06365

 

Chairwoman, Board of Education, Preston Public Schools; and

Board of Education, Preston Public Schools

c/o Matthew K. Curtin, Esq.

Siegel, O’Connor, O’Donnell & Beck, P.C.

150 Trumbull Street

Hartford, CT  06103

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-501/FD/cac/6/9/2011