CV 00 0503942S
JUDICIAL DISTRICT OF
JUNE 26, 2001
MEMORANDUM OF DECISION
plaintiff, Bruce Kaz, appeals from a June 28, 2000 decision of the defendant,
Freedom of Information of Information Commission ("FOIC"), denying relief against officials
of the town of Suffield ("the town") and arising from a request for public records of the town.
The appeal is taken pursuant to General Statutes §§ 1-206(d) [formerly § 121i (d)] and § 4-166
et seq. of the Uniform Administrative Procedure Act ("UAPA").
record in this case shows as follows. By letter dated August 23, 1999, the
Central District Health Department ("the Health District") informed Scott Guilmartin, a
member of the Suffield Planning and Zoning Commission, that he was violating the state
public health code in his handling of washing machine waste water on his premises. (Return of
Record ("ROR"), Item 1, pp. 6-7.) Subsequently, the letter was sent anonymously to newspaper
reporters and other individuals during a time period in which Guilmartin was involved in a
contested primary for his office.
October 13, 1999, Guilmartin filed a complaint with the town, alleging that a
town employee released the North Central
letter without his permission to the newspaper
reporters and the public in order harm his
political campaign. (ROR, Item 7, p. 40.) On
September 20, 1999, the town retained attorney
Justin Donnelly to investigate
Guilmartin's complaint. (ROR, Item 8, p. 41.)
The investigation by Donnelly, which
included interviews and the receipt of
documents, was completed on or about November
17, l999. (ROR, Item l, p.l2.)
or about November 8, 1999, Leo Smith requested release of correspondence
involving the town's building department and
an employee, Patricia Miner, who allegedly
released the August 23, l999 letter. (ROR,
Item l0, p. 43.) Miner was asked by the
town's human resources director if she objected to
the release of the requested materials.
On November 17, 1999, Miner stated that she
"strongly objected" to the release. (ROR,
Item 11, p. 44.)
the final decision, the FOIC made the following findings of fact and
conclusions of law:
2. It is found that by letter dated December 3, 1999 to the respondents [Robert Skinner, First Selectman, Town of Suffield and Ted Flanders, Building Inspector, Town of Suffield], the complainant [Bruce Kaz] made a request for all documentation or correspondence related to the North Central District Health Department letter of August 23, 1999, including the investigation of the alleged "leak" of said letter and the billing statements of the attorneys handling the investigation.
By letter dated December 3, 1999, the respondents responded to the
request, providing him with some of the information, but denied the
complainant's request with respect to the records pertaining to the
investigation, claiming that the subject of the records [Patricia Miner]
(hereinafter "the subject") requested that the information remain
confidential, and claimed attorney client privilege with respect to the notes
taken by the attorneys during their investigation.
By letter dated December 15, 1999 and filed on December 16, 1999, the
complainant filed an appeal with this Commission alleging that the respondent
violated the Freedom of Information ("FOI") Act by failing to
provide him with all of the requested records. The complainant asked for the
imposition of a civil penalty.
It is found that the requested records constitutes a “personnel" or
"similar file" within the meaning of § 1-210(b)(2), G.S. [formerly
It is found that the respondents received from the subject an oral objection
and, by letter dated November 17, 1999, a written objection, to the disclosure
of the requested records.
It is found that while the objection was in direct response to a prior request
by another individual, the respondents understood that the subject did not
want the records disclosed at any time to anyone.
Section 1-214(c), G.S. [formerly §1-20a(c), G.S.], provides in relevant part
that "[u]pon the filing of an objection . . . the agency shall not
disclose the requested records unless ordered to do so by the Freedom of
Information Commission ...."
It is found, however, that on or about December 16, l999, the subject of the
records withdrew her objection and the respondents provided the complainant
with all of the records maintained by the respondents which are responsive to
his request except for the notes of the attorneys.
16. It is found that the respondents, after receiving answers to certain legal inquiries, determined that disclosure of the investigation report would be an invasion of the subject's personal privacy because (1) there was no findings of a violation of any laws or duties on the part of the subject and (2) the subject may receive a degree of harassment at her home regarding the matter because of the subject's prominent position, and the position of certain other close family members, in a very small and somewhat politically charged town.
It is found that while the respondents failed to apply the appropriate legal
standards established by the Supreme Court in Perkins [v. FOIC, 228
Conn. 158 (1993)], in determining whether disclosure of the records would be
an invasion of the subject's personal privacy, the respondents reasonably
believed that disclosure of the records would be an invasion of the subject's
It is therefore found that the
respondents promptly complied with the complainant's request.
It is concluded that the respondents did not violate the provisions of
§1-210(a), G.S. [formerly §1-l9(a), G.S.].
Item 20, pp. 123-25.)
upon these findings, the FOIC denied the award of any civil penalty to the
plaintiff and dismissed the complaint. (ROR, Item 20, pp. 125-26.) The
plaintiff thereupon appealed to this court. Aggrievement is found as the
plaintiff was denied an award of civil penalties and access to the attorneys'
files. Wildin v. Freedom of Information
Commission, Superior Court, judicial district of Hartford‑New
Britain at Hartford, Docket No. 572290 (June 17, 1998, DiPentima, J.). In an
administrative appeal, the UAPA sets forth the standard of review for the
court. General Statutes § 4-183(j). That
familiar standard was well set forth in Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47
Conn. App. 466, 469-70 (1998) as follows:
scope of perrnissible review is governed by § 4-183(j) and is very
restricted.... Neither this court nor the trial court may retry the case or
substitute its own judgment for that of the [agency].... The conclusion
reached by the [agency] must be upheld if it is legally supported by the
evidence.... The credibility of witnesses and the determination of factual
issues are matters within the province of the administrative agency, and, if
there is evidence . . . which reasonably supports the decision of the
commissioner, we cannot disturb the conclusion reached by him.... Our ultimate
duty is to determine, in view of all of the evidence, whether the agency, in
issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of
omitted; footnote omitted; internal quotation marks omitted.)
The first issue raised by the plaintiff is that he is entitled to the investigative report's supporting documents  now in the possession of attorneys McAnaney and Donnelly and that the FOIC erred in not ordering disclosure. The town made a motion to dismiss this claim prior to the hearing before the FOIC and the plaintiff objected to the motion. (ROR, Item 3, pp. 29-34.) The hearing officer inexplicably did not rule on this motion or objection. No evidence was taken at the hearing as it related to the attorneys' supporting documents.
town correctly relies upon the case of Shew
v. Freedom of [nformation Commission, 245 Conn. 149 (1998) to argue that
there are two possible exceptions here from the disclosure provisions of the
Freedom of Information Act ("FOIA") – attomey-client privilege
under General Statutes § 1-210(b)(10) [formerly § 1-19(b)(10)] and
preliminary drafts and notes under General Statutes § 1-210(b)(1) [formerly
§ 1-19(b)(1)]. Because the FOIC error, however, the court cannot rule on the
applicability of Shew.
that the attorney-client privilege protects "communications" from
town employees to the attorney. Shew v.
Freedom of Information Commission, supra, 245 Conn. 159. Here, there is
nothing of record, not even a list, to indicate what is contained in the
attorneys' files. There may be documents that are not "communications.''
There may be communications from non‑current employees, communications
about matters not the subject of the investigation, and communications not
made in confidence. Each of these items would not be protected by the
attorney-client privilege. Id.
regards the preliminary draft exception, in Shew,
after holding that the documents are preliminary drafts, the Supreme Court
approves of the trial court's remand to determine whether the town has
determined that the "public interest in withholding such documents
clearly outweighs the public interest in disclosure...." (Citations
omitted.) Shew v. Freedom of lnformation
Commission, supra, 245 Conn. 167. Whether this weighing occurred in this
case is not in the record. Therefore, the case must be
remanded to the FOlC for the appropnate
factual considerations to be made on the applicability of Shew.
his second issue, the plaintiff contends that the court should find that the
FOIC wrongly concluded that the town did not violate FOIA in its disclosure of
the records, other than the attorneys' notes. One part of this claim is
finding of fact number 18 that the town "promptly complied" with the
plaintiff’s request. This is a factual decision and is governed by the
substantial evidence rule, quoted above. The court may not reevaluate the
FOIC's conclusion that the town was prompt.
plaintiff also challenges the town's application of General Statutes § 1-214,
the provision allowing an employee to make a claim for invasion of privacy and
requesting the town to delay disclosure. The court will not rule on this
issue. The town has already turned over all the requested documents. It has
agreed in open court to a workshop on the Freedom of Information Act as
prepared by the FOIC. In addition the FOIC concluded in its decision that the
town "failed to apply the appropriate legal standards established by the
Supreme Court in Perkins." (ROR,
Item 20, p. 125, ¶ 17.) The plaintiff at oral argument abandoned his claim
for a civil penalty.
the court in Sobocinski v. Freedom of
Information Commission, 213 Conn. 126, 135 (1989) stated: "This court
will not decide moot questions where there is no
actual controversy or where no actual or
practical relief can follow from their determination...." (Citations
omitted.) The plaintiff's appeal is sustained as to the issue of the
attorney's notes and remanded to the FOIC for further proceedings in
accordance with this opinion.
Henry S. Cohn, Judge
were the files of attorneys Justin Donnelly and Edward McAnaney.
plaintiff states that he has received Donnelly's final report that was the
product of the investigation and now only seeks the attorneys' notes.
(Plaintiff's Brief, p. 12.) The court can only speculate that these notes
contain interviews with town employees, letters, and legal memoranda.
fact that the attorneys were not named in this appeal does not deprive the
court of jurisdiction over the FOIC and its decision. See General Statutes