FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 94-8
O. Paul Shew, Rocky Hill Town Manager/Public Safety Director,
Respondent May 25, 1994
The above-captioned matter was heard as a contested case on March 18 and 31, and April 20, 1994 at which times the complainant and respondent appeared 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. By letter of request dated and hand-delivered to the respondent on December 21, 1993 (hereinafter "December request"), the complainant sought prompt access to the following:
(a) all statements "created and/or collected as part of the investigation that resulted in the termination of former Rocky Hill Police Chief Schnabel," and
(b) all summaries of interviews of persons questioned in connection with the investigation and review of Schnabel's actions as police chief conducted by Attorney Felix Springer during the period December 1991 through June 1992.
3. It is found that the respondent denied the complainant's request on or about December 21, 1993, claiming that the requested records were protected from disclosure by the attorney-client privilege.
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4. By letter of complaint dated and filed with the Commission on January 11, 1994 the complainant appealed the respondent's denial and requested the imposition of a civil penalty.
5. It is found that beginning in October of 1991 there was a jury trial involving then Rocky Hill Police Chief Schnabel's claims of defamation against Rocky Hill police officer Tyler who raised five counterclaims (hereinafter "Schnabel v. Tyler").
6. It is found that on December 13, 1991 the jury rendered a verdict against Schnabel on his defamation claim, and found for Tyler on each of his five counterclaims.
7. It is found that subsequent to the jury's verdict in Schnabel v. Tyler, the respondent hired Attorney Springer, acting as special counsel, to ascertain whether or not Schnabel had in fact abused his office as police chief, as found by the jury, in his treatment of Tyler and others in Rocky Hill (hereinafter "Springer investigation").
8. It is found that the Springer investigation largely consisted of a comprehensive review of the trial transcript and exhibits in Schnabel v. Tyler.
9. It is found that Springer was assisted in his investigation by Attorney Elaine Stuhlman, who at the time of her hiring was the law partner of the Rocky Hill Town Attorney.
10. It is found that Stuhlman was recommended by the respondent, worked with Springer and interviewed Rocky Hill employees and residents, including the complainant, regarding possible abuses by Schnabel as police chief.
11. It is found that Stuhlman began her interviews in January of 1992 and in April of 1992 the respondent suspended her role in the Springer investigation.
12. It is found that some of the people interviewed by Stuhlman provided her with affidavits, while summaries of other written statements were also created (hereinafter "Stuhlman records").
13. It is found that although the respondent never took possession of the Stuhlman records he was shown drafts of some of the Stuhlman records, and the records are presently in the custody of the Rocky Hill Town Attorney.
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14. It is found that by report dated June 15, 1992, Springer provided the respondent with an analysis of a series of actions by Schnabel against Tyler over a three year period (hereinafter "Springer report").
15. At the hearing in this matter the respondent acknowledged that the Springer report is a public record within the meaning of 1-15 and 1-19, G.S.
16. It is found that by letter dated June 17, 1992 the respondent notified Schnabel of his intention to dismiss him as police chief.
17. It is found that the written notification of the decision to terminate Schnabel was issued by the respondent in July 1993.
18. It is found that the statements that resulted in Schnabel's termination were those that were culled from the transcript and exhibits in Schnabel v. Tyler, as well as information gathered during publicly held hearings concerning Schnabel's proposed termination.
19. It is found that the trial transcript, transcipts of the termination hearings, and the Springer report are the documents responsive to the complainant's records request as set forth in paragraph 2(a) of the findings, above.
20. It is therefore concluded that the respondent violated the access provisions of 1-19(a), G.S., when he failed to provide the complainant with prompt access to the subject records, as identified in paragraph 19 of the findings, above.
21. It is found that the Stuhlman records are the documents responsive to the complainant's records request as set forth in paragraph 2(b) of the findings, above.
22. The respondent, however, claims that the Stuhlman records are exempt from disclosure for the following reasons:
(a) the complainant's December request could not be read to include the Stuhlman records;
(b) the Stuhlman records are preliminary drafts and notes within the meaning of 1-19(b)(1), G.S.;
(c) the Stuhlman records are attorney work-product
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and therefore exempt from disclosure under 1-19(b)(4); and
(d) the Stuhlman records are exempt from disclosure pursuant to 1-19(b)(10), G.S., as records subject to the attorney-client rpivilege.
23. It is found that the complainant began making oral requests for access to the Stuhlman records during the winter of 1992.
24. It is found that the respondent acknowledged the complainant's oral requests and asked that the complainant refrain from making such requests until the Springer investigation had concluded.
25. It is found that at the suggestion of the respondent, the complainant did refrain from requesting the Stuhlman records until after the conclusion of the Springer investigation.
26. It is therefore concluded that prior to, and at the time of his December request the respondent was informed of the complainant's desire to have access to the Stuhlman records.
27. Section 1-19(b)(1), G.S., states in pertinent part that disclosure shall not be required of:
... preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure....
28. At all times material, the respondent maintained that the Stuhlman records were neither created for, nor used in the creation of the Springer report. In addition, the respondent claimed that the Stuhlman records were not a basis for his decision to initiate termination proceedings against Schnabel.
29. Therefore it is found that the respondent failed to prove that the Stuhlman records were "antecedent or preparatory" to any other document, or that the records were "preliminary" within the accepted definition of that term.
30. In addition, it is also found that the respondent failed to prove that the requested notes were records of a "preliminary, deliberative and predecisional process" within the meaning of 1-19(b)(1), G.S.
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31. It is concluded that the subject records do not constitute preliminary notes within the meaning of 1-19(b)(1), G.S., and therefore are not exempt from disclosure pursuant to 1-19(b)(1), G.S.
32. The complainant argues that the Stuhlman records fall outside of the scope of the work product rule and the attorney-client privilege because Stuhlman's role was that of an investigator in what was essentially an internal affairs investigation of Schnabel by Springer.
33. The work product rule that the respondent claims exempts the Stuhlman records from disclosure is an evidentiary concept embracing "... work done by [an] attorney in his [or her] professional capacity in the course of an attorney-client relationship." See Black's Law Dictionary (4th Ed., 1968)
34. Specifically, without a showing of "substantial need" and "undue hardship" the work product rule protects from discovery materials prepared by "... an attorney in anticipation of litigation ... or for trial." See Black's Law Dictionary (5th Ed., 1979)
35. It is found that the respondent selected and recommended Stuhlman to conduct the interviews primarily because she was competent and familiar to residents and employees of Rocky Hill.
36. It is found that the discussions that the respondent had with Stuhlman concerned her progress with the interviews until her investigation was halted.
37. It is found that the respondent failed to prove that Stuhlman was selected and hired as a legal advisor, or that the respondent failed to prove that legal advice of any kind was sought and received from Stuhlman.
38. It is found that Stuhlman was not acting as a professional legal adviser, but rather as an investigator with legal credentials.
39. It is therefore concluded that the respondent neither proved the existence of an attorney-client relationship with Stuhlman, nor that the Stuhlman records were prepared in anticipation of litigation or for a trial.
40. It is also concluded that the work product rule does constitute an exemption under Connecticut's Freedom of Information (hereinafter "FOI") Act, and therefore the work product rule is not applicable to the records at issue here.
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41. Section 1-19(b)(4), G.S., states in relevant part that
(b) Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be construed to require disclosure of ... (4) records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled; ....
42. It is found that the respondent failed to prove the applicability of 1-19(b)(4), G.S., and therefore it is concluded that 1-19(b)(4), G.S. does not apply to the subject records.
43. Section 1-19(b)(10), G.S., exempts from required disclosure "communications privileged by the attorney-client relationship."
44. 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).
45. Having found in paragraphs 37 through 40 of the findings, above, that Stuhlman was not acting in the capacity of legal advisor when she created the Stuhlman records, it is further found that 1-19(b)(10), G.S., is not applicable to the subject records.
46. It is therefore concluded that the respondent failed to prove the applicability of any FOI Act exemption to disclosure of the Stuhlman records.
47. The respondent submitted what he purports are the Stuhlman records to the Commission for in camera inspection and the records have been designated as in camera documents 94-8-1 through 94-8-5, inclusive, (hereinafter "IC documents").
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48. The Commission notes that the respondent's counsel failed to follow the oral and written instructions given to him by Commission counsel concerning the submission of the Stuhlman records for in camera review. Specifically, the IC documents were left with a Commission staff member rather than being hand-delivered to Commission counsel for this contested case as specifically instructed.
49. Having conducted an in camera review of the records at issue, the Commission finds that the Stuhlman records are public records within the meaning of 1-18a(d), G.S., and subject to the disclosure provisions of 1-15 and 1-19(a), G.S.
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 instruct the town attorney to provide the complainant with access to inspect IC documents 94-8-1 through 94-8-5, inclusive.
2. Thereafter the respondent shall forthwith provide the complainant with access to the records identified in paragraphs 2(b) and 21 of the findings, above.
3. In complying with paragraph 2 of this order, the respondent may redact all references to, and the names and personally identifying information of otherwise confidential informants, third parties and those who provided statements or information in connection with the particular summary, statement or affidavit being disclosed.
4. If the respondent has not already done so he shall also provide the complainant with immediate access to inspect the records identified in paragraphs 2(a) and 19 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 1994.
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. Edward A. Peruta
P.O. Box 307
Rocky Hill, CT 06067
O. Paul Shew, Rocky Hill Town Manager/Public Safety Director
c/o Curtis H. Roggi, Esq.
2080 Silas Deane Highway
Rocky Hill, CT 06067
Town of Rocky Hill
c/o Felix J. Springer, Esq.
Day, Berry & Howard
Hartford, CT 06103-3499
Elizabeth A. Leifert
Acting Clerk of the Commission