FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Della Construction Company, Inc.,
against Docket #FIC 92-202
Manchester General Manager,
Respondent April 14, 1993
The above-captioned matter was heard as a contested case on December 18, 1992, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.
2. It is found that on or about May 12, 1992, the complainant's representatives viewed and tagged for copying by the respondent, a number of documents pertaining to the reconstruction of Main Street, project number 76-135 (hereinafter "project").
3. On or about May 12, 1992, the complainant requested that it be provided with a copy of each of four certain documents, previously withheld by the respondent on that date pertaining to the project.
4. By letter dated June 3, 1992, the complainant again requested that the respondent provide it with a copy of the four documents withheld on May 12, 1992 on the ground of attorney-client privilege.
5. The respondent having failed to comply with this specific request, by letter of complaint filed on June 17, 1992, the complainant appealed to this Commission.
6. The respondent claims that the requested documents are exempt from disclosure pursuant to 1-19(b)(10), G.S.
Docket #FIC 92-202 Page 2
7. Section 1-19(b)(10), G.S., exempts from required disclosure "communications privileged by the attorney-client relationship."
8. The complainant argues that the requested records fall outside of the scope of the attorney-client privilege because the privilege was waived when its representatives saw the documents on May 12, 1992.
9. Connecticut's common law rule of attorney-client privilege has been stated as follows:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
LaFaive v. DiLoreto, 2 Conn. App. 58, 65 (1984).
10. The respondent submitted the requested records to the Commission for in camera inspection and the records have been designated as in camera (hereinafter "IC documents"), 92-202-1 through 92-202-4, inclusive.
11. It is found that the requested records are public records within the meaning of 1-18a(d), G.S.
12. Having conducted an in camera review of the records at issue, the Commission finds that with the exception of the facsimile cover sheet for IC 92-202-4, the four documents at issue are in fact subject to the attorney-client privilege unless the privilege was, in fact, waived.
13. The Commission takes administrative notice of the pleadings, record and final decision in docket #FIC 91-254, Thomas F. Lepore and Della Construction Company, Inc. v. General Manager, Town of Manchester.
14. There is no dispute that the complainant has requested and received copies of, or access to several hundred pages of documents from the respondent. The respondent's policy and practice has been to review the public records to which access is sought, prior to disclosing them, in an effort to ensure that privileged or exempt records are not part of public record files.
Docket #FIC 92-202 Page 3
15. The respondent concedes, however, that the records at issue here were probably commingled with records that were provided to the complainant's representatives for viewing, and as a result were viewed by them on or about May 12, 1992. Nevertheless, the respondent argues that such access was unintentional and therefore should not constitute a waiver of the attorney-client privilege.
16. The complainant concedes that the records at issue are correspondence or memoranda to or from the town's independent legal counsel concerning the project, and that the records were probably written with the intention of communicating or receiving legal advice.
17. It is found that in reviewing the documents before the requested copies were made available to the complainant, the respondent discovered that the records at issue had been viewed by the complainant.
18. It is found that once the respondent realized that the documents covered by the attorney-client privilege were among the documents viewed by the complainant's representatives, he refused to provide the complainant with copies of the records for which the privilege was claimed.
19. Therefore, under the facts of this case, it is found that the partial disclosure of the privileged records where the complainant's representatives' cannot recall with any clarity the essence of any single document viewed, and the respondent acted promptly to rectify the inadvertent disclosure before the complainant actually obtained a copy of the privileged records, does not constitute a waiver of the attorney-client privilege with respect to those records subject to the privilege.
20. It is therefore concluded that the respondent's inadvertent inclusion of the records at issue with nonexempt public records is not sufficient to constitute a waiver of the attorney-client privilege with respect to those records subject to the privilege.
21. Thus it is concluded that: (1) the 1-19(b)(10), G.S., exemption is applicable to the records at issue, with the exception of the facsimile cover sheet for IC document 92-202-4, and (2) the respondent violated the provisions of 1-15 and 1-19, G.S., only when he failed to provide the complainant with a copy of IC document 92-202-4.
Docket #FIC 92-202 Page 4
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 the complainant with a copy of the facsimile cover sheet for IC document 92-202-4. The respondent shall bear the cost of copying.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-202 Page 5
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:
DELLA CONSTRUCTION COMPANY, INC.
c/o Atty. John J. O'Brien, Jr.
Della Construction Co., Inc.
1 Depot Hill Road
P.O. Box 1290
Enfield, CT 06083
MANCHESTER GENERAL MANAGER
c/o Atty. Patricia E. Reilly
Tyler, Cooper & Alcorn
205 Church Street
P.O. Box 1936
New Haven, CT 06509
Debra L. Rembowski
Acting Clerk of the Commission