FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Timothy J. Riordan,
against Docket #FIC 93-194
Superintendent, Orange Public Schools and Orange Board of Education,
Respondent December 8, 1993
The above-captioned matter was heard as a contested case on October 14, 1993, 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 1-18a(a), G.S.
2. By letter dated June 11, 1993, the complainant requested that the respondent superintendent provide him with a copy of a three page letter from [the law firm of] Shipman & Goodwin, which letter was discussed during the course of an April 12, 1993 meeting of the respondent board of education.
3. By letter dated July 15, 1993 and filed July 16, 1993, the complainant appealed to the Commission alleging that the respondent failed to respond to his June 11, 1993 request.
4. It is found that the document to which the complainant referred in his June request, is a letter prepared by counsel for the respondent board of education concerning his review of the respondents' proposed policy regarding access to and retention of personnel files ("personnel file policy").
5. It is concluded that the subject letter is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
6. The respondents claim that the requested letter is exempt from disclosure pursuant to 1-19(b)(10), G.S., which,
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in relevant part, provides for the nondisclosure of "...communications privileged by the attorney-client relationship."
7. The complainant maintains that even if the subject letter constitutes a communication privileged by the attorney-client relationship, the respondents forfeited any privilege when members of the respondent board read portions of the letter during the course of the respondent board's April 12, 1993 meeting.
8. Following the hearing on this matter, the respondents submitted the subject letter for in camera inspection.
9. The exemption for attorney-client privileged communications contained in 1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:
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 may be waived.
LaFaive v. DiLoreto, 2 Conn. App. 58, 65 (1984).
10. It is found that the subject letter contains counsel's recommendations with respect to the respondents' proposed policy concerning access to and disclosure of personnel files and whether such policy comports with the provisions of the Freedom of Information ("FOI") Act.
11. It is found that revision of the respondents' personnel file policy was a subject of discussion at many meetings of the respondent board of education prior to the April 12, 1993 meeting and the fact that the respondents sought the recommendations of counsel concerning their personnel file policy was made publicly known during the course of the April 12, 1993 meeting.
12. It is further found that disclosure of the subject letter would not reveal any communications given in confidence, by the respondents, to their attorney; rather the subject letter is simply an interpretation of various requirements of the FOI Act and their application to the respondents' personnel file policy.
13. It is also found that several members of the respondent board of education read portions of the subject
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letter during the course of the personnel file policy discussion at the April 12, 1993 meeting.
14. It is therefore concluded that the respondents waived the privilege by reading portions of the requested letter during the course of the April 12, 1993 public meeting of the respondent board of education.
15. It is concluded therefore that the subject letter is not exempt from disclosure pursuant to 1-19(b)(10), G.S., and that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with a copy of the subject letter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall forthwith provide the complainant with a copy of the requested letter described in paragraph 4, of the findings, above.
2. Henceforth the respondents shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 8, 1993.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Timothy J. Riordan
675 Ridge Road
Orange, CT 06477
Superintendent, Orange Public Schools and
Orange Board of Education
c/o William S. Fish, Jr., Esq.
Tyler, Cooper & Alcorn
Cityplace - 35th Floor
Hartford, CT 06103-3488
Elizabeth A. Leifert
Acting Clerk of the Commission