FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Cyril K. Smith, Jr. and Northford Acres Sewer Association,
against Docket #FIC 94-416
North Branford Water Pollution Control Authority,
Respondent September 13, 1995
The above-captioned matter was heard as a contested case on July 6, 1995, at which time the complainants and the 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 complaint filed with this Commission on November 28, 1994, the complainants alleged that the respondent violated the provisions of the Freedom of Information ("FOI") Act by failing to release certain records that would support an assessment figure arrived at by the town.
3. It is found that by letter dated November 7, 1994, the complainants requested that the respondent furnish a copy appraisals done by Lesher-Glendinning and Company, Inc. at the request of Attorney Church, attorney for the respondent.
4. It is also found that by letter dated November 16, 1994, the respondent informed the complainants that they should await response on the matter from Attorney Church.
5. It is also found that by separate letter dated November 16, 1994, Attorney Church informed the complainants that he had a preliminary sewer benefit analysis prepared by Lesher-Glendinning & Co., Inc., on behalf of the town but that the complainants were being denied access to those records on the basis that a) it is a communication privileged by the attorney-client relationship; and b) the records were prepared as and are records pertaining to strategy and negotiations with respect to pending claims or pending litigation.
6. The records at issue (hereinafter "analysis")
Docket #FIC 94-416 Page 2
constitutes a public record within the meaning of 1-18a(d), G.S.
7. It is found that the town paid for the analysis from Lesher-Glendinning & Co., Inc., and that the analysis was done at the town attorney's request.
8. It is also found that Lesher-Glendinning & Co., Inc., was not a client of the town attorney under the facts of this case.
9. This Commission takes administrative notice of Reinzo
v. Santangelo, 160 Conn. 391, 395, 279 A.2d. 565 (1971) and 8 Wigmore, Evidence (McNaughton Rev. 1961) 2292, p. 554, which provide in pertinent part:
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." (emphasis added).
10. This Commission also takes administrative notice of the final decision in contested case docket #FIC 88-130, which provides at paragraph 12: "It is found that communications privileged by the attorney-client relationship are those made by the client to the attorney, in confidence, for the purpose of seeking legal advice." (emphasis added).
11. It is concluded that the analysis is not exempt from disclosure pursuant to 1-19(b)(10), G.S., as a communication protected by the attorney-client privilege.
12. It is found that on or about November 25, 1994, the complainants filed an appeal of sewer assessments in New Haven Superior Court, and that on or about September 15, 1994, the complainants and the respondent met along with the town attorney and town engineer to discuss generally the possible avoidance of the anticipated appeals of assessments by the complainants, which discussion was unsuccessful in avoiding such appeals.
13. It is found that the town's position was that the analysis supported the assessments levied on each household, and accordingly the town ultimately decided against the imposition of nominal assessments in order to avoid the above-referenced appeals.
14. It is concluded that while the analysis provided support to the town in its first-instance decision not to levy nominal household assessments, the records did not pertain to
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the actual strategy or negotiation in the assessment appeal claim.
15. This Commission also notes the language of 1-19(c)(1), G.S., which provides in pertinent part that "disclosure shall be required of ... any report comprising part of the process by which governmental decisions and policies are formulated..."
16. At the hearing into this matter, the respondent also raised the issue that the records at issue are exempt from disclosure pursuant to 1-19b(b)(1), G.S.
17. It is found that the respondent failed to produce any evidence to indicate that any discovery orders were either sought or entered relevant to the facts of this case.
18. It is accordingly concluded that the provisions of 1-19b(b)(1), G.S., does not exempt the records at issue from disclosure under the facts of this case.
19. It is concluded that the respondent violated the provisions of 1-15(a), G.S., by failing to provide to the complainants a copy of the records identified in paragraphs 3 and 5, above.
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 to the complainants free of charge a copy of the records identified in paragraph 5 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 13, 1995.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 94-416 Page 4
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:
Cyril K. Smith, Jr. and Northford Acres Sewer Association
c/o Richard J. Beatty, Esq.
25 Boston Street
Guilford, CT 06437
North Branford Water Pollution Control Authority
c/o Norbert W. Church, Jr., Esq.
Church and Church
399 Orange Street
P.O. Box 78
New Haven, CT 06501
Elizabeth A. Leifert
Acting Clerk of the Commission