FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 3, 2011, at which time the complainants 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 email dated February 17, 2011, the complainants made a request for a copy of the following records:  1) the State Employees Retirement Commission’s request to Robinson and Cole LLP for an opinion on how to interpret the Internal Revenue Service’s rules concerning the transfer of certain retirement funds; and 2) Robinson and Cole’s written opinion regarding the same. 

 

3.  It is found that, by email dated February 22, 2011, the respondents acknowledged the complainants’ request for records, but indicated that the records were exempt from disclosure as privileged attorney-client communications.   

 

      4.  By letter dated March 10, 2011 and filed March 18, 2011, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their requests 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), 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.”

 

8.  It is found that the respondents maintain the documents described in paragraph 2, above, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a) G.S., and that copies of such records must be provided in accordance with §§1-210(a), and 1-212(a), G.S., unless the records, or portions of the records, are exempt from disclosure. 

 

9.  It is found that the complainant, Stephen Adair, a Professor at Central Connecticut State University, is a member of the Alternative Retirement Program (“ARP”). 

 

10. It is found that, on September 22, 2010, an agreement was reached between the State of Connecticut and the State Employees Bargaining Agent Coalition (“SEBAC”), concerning a grievance that had been filed by higher education unions.  It is found that one of the results of the agreement was that higher education employees were given a one-time opportunity to choose between remaining in ARP, or using funds in their ARP accounts to buy into the State Employees Retirement System (“SERS”).

 

11. It is further found that, subsequent to the agreement referenced in paragraph 10, above, the State Employees Retirement Commission (the “retirement commission”) engaged the attorneys of Robinson and Cole to provide it with legal advice regarding, in part, the IRS implications that could arise as a result of permitting employees in ARP to transfer into SERS. 

 

12. It is the complainants’ position is that, because the higher education employees (or the members of ARP) are the individuals who benefited from the agreement referenced in paragraph 10, above, they should be seen as the actual party in interest and the retirement commission should be seen as these employees’ agent.  Accordingly, it is the complainants’ position that when the retirement commission solicited legal advice from Robinson and Cole it should be deemed as having done so on behalf of these employees—that is, on behalf of the members of ARP who benefited from the agreement.

13. The respondents contend that the retirement commission’s request for legal advice and the written advice provided is exempt from disclosure pursuant to §1-210(b)(10), G.S., which permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.” 

 

14. 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.

15. 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. . . .

 

16. 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.

 

17. It is found that the Retirement Services Division (the “retirement division”) is the administrative arm of the retirement commission. 

 

18. It is found that when the parties reached the agreement referred to in paragraph 10, above, Ms. Jeanne Kopek, the then Assistant Director of the retirement division, reviewed the agreement on behalf of the retirement commission for the purpose of implementing it.  Upon her review, Ms. Kopek had concerns about the implementation of the agreement and she brought these concerns to the attention of the Director of the retirement division and to the retirement commission itself. 

 

19. It is found that the retirement commission discussed the issues raised by Ms. Kopek at its October 21, 2010 regular meeting during an executive session.  It is found that the purpose of the retirement commission’s executive session was to discuss the immediate procurement of outside legal counsel to advise it about the legal implications of implementing the agreement.  When the retirement commission reconvened in the open portion of the October 21, 2010 meeting, it instructed the retirement division to determine, in an expedited fashion, the process for retaining outside counsel.  Thereafter, it is found that the retirement division followed the procedures for obtaining legal counsel for the retirement commission. 

 

20. It is found that the retirement commission requested professional legal advice from its attorneys concerning its professional obligations as a public agency.  It is further found that requested records are written communications between the retirement commission and its attorneys concerning the legal advice solicited and received by the retirement commission.  It is further found that these communications were made in confidence. 

 

21. While the complainants contend that there is a conflict of interest because some of the members of the retirement commission are also members of SEBAC, it is found that there is no evidence in the record from which this Commission can find that the respondents generally, or any of the members of the retirement commission specifically, have waived the attorney-client the privilege.

 

21. It is found, therefore, that the records in question constitute records of communications privileged by the attorney-client relationship, within the meaning of §1-210(b)(10), G.S. 

 

22. It is therefore concluded that the records are exempt from mandatory disclosure and that the respondents did not violate the disclosure requirements of §§1-210(a) and 1-212(a), G.S., when they denied the complainants’ request for a copy of the records.

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 November 16, 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:

 

Jason Jones and Stephen Adair

Central Connecticut State University

1615 Stanley Street

New Britain, CT  06050

 

Director, State of Connecticut, Office of the State Comptroller, Connecticut Retirement Services; and Chairman, State of Connecticut, Office of the State Comptroller, State Employees Retirement Commission

c/o Helen M. Kemp, Esq.

State of Connecticut, Office of the State Comptroller

Retirement Services

55 Elm Street

Hartford, CT  06106

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-147/FD/cac/11/16/2011