FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Larry Greene and Preston Residents Against Annexation,
against Docket #FIC 94-367
Preston First Selectman,
Respondent October 11, 1995
The above-captioned matter was heard as a contested case on May 18, 1995, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #sFIC 94-372, Cindy Brewster and Residents Against Annexation v. Joseph A. Lozier, Mayor of Ledyard and FIC 94-373, Ann Brown, Andrew Carroll, Charles Elias, Lydia Hobbs, Richard Jeffery, Elizabeth Perkowski and John Simonds v. North Stonington Board of Selectmen, were consolidated with the above-captioned case for hearing. At the hearing into this matter, the Norwich Bulletin was granted party status in accordance with the provisions of the Regulations of Connecticut State Agencies 1-21j-28.
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 the complainants, by letter dated September 20, 1994 requested that the respondent provide them with access to inspect and copy all records pertaining to the Town of Preston's ("the town") official position during the final days of the mediation process with the Mashantucket Pequot Tribe ("the tribe"). The complainants specifically requested all handwritten or typed material mailed, hand-delivered or faxed to Conflict Management Group ("CMG"), all maps of the town or portions thereof submitted by the respondent to CMG, for use in a final proposal submitted by CMG back to the town and the tribe during the first week of September 1994 (hereinafter "requested records").
3. It is found that the respondent denied the request on September 30, 1994.
4. Having failed to receive access to the requested
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records, the complainants appealed to the Commission by letter dated October 11, 1994 and filed on October 17, 1994.
5. The Commission takes administrative notice of the record and decisions in contested cases docket #sFIC 93-190,
Susann Viafora and Norwich Bulletin v. Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen, FIC 93-235, Keith Fontaine and Norwich Bulletin v. Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen, FIC 94-136, Ann. C. Brown, Charles E. Elias and John D. Simonds v. Mayor of Ledyard, North Stonington First Selectman and Preston First Selectman, FIC 94-372, Cindy Brewster and Residents Against Annexation v. Joseph A. Lozier, Mayor of Ledyard and FIC 94-373, Ann Brown, Andrew Carroll, Charles Elias, Lydia Hobbs, Richard Jeffery, Elizabeth Perkowski and John Simonds v. North Stonington Board of Selectmen.
6. In docket #FIC 94-136 the Commission found that:
4 ...in January 1993, the tribe filed an application with the Bureau of Indian Affairs requesting that certain lands located within the towns [of Preston, Ledyard and North Stonington] be taken into trust.
5. ...the towns [of Preston, Ledyard and North Stonington] adopted policies to oppose the tribe's application to have land transferred in trust.
6. ...as a result of the dispute which arose between the towns [of Preston, Ledyard and North Stonington] and the tribe concerning the trust acqusition issue, it was apparent to the towns [of Preston, Ledyard and North Stonington] that litigation was imminent.
7. ...at the request of the Secretary of the Interior, Congressman Gejdenson, Senator Lieberman and Senator Dodd the towns [of Preston, Ledyard and North Stonington] and the tribe agreed in December 1993 to participate in a mediation process to determine if the dispute could be resolved without resorting to litigation.
7. It is found that the towns of Preston, Ledyard and North Stonington ("the towns") retained the services of Perkins Coie, a Washington D.C. law firm, in March 1993, to consider possible legal action with respect to the tribe's land acquisition application.
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8. It is found that as a result of the December 1993 agreement, described in paragraph 6 sub-paragraph 7, above, the towns and the tribe entered into a Memorandum of Understanding, dated April 15, 1994, whereby they agreed to submit their dispute to a facilitation/mediation process with CMG, a private company hired by the towns and the tribe to serve as facilitators.
9. It is found that during the facilitation/mediation process numerous documents including letters, memoranda, faxes and maps were generated and used by the towns, the tribe, CMG and the towns' attorneys.
10. It is found that the requested records consists of those records described in paragraph 9, above..
11. It is found that the facilitation/mediation process broke down and ended in September 1994.
12. It is found that most of the requested records were subsequently destroyed and further that the remaining records are now in the possession of the respondent's Washington, D.C., attorneys.
13. It is found that the towns filed suit against the Secretary of the Department of the Interior in the federal district court for the District of Columbia on May 11, 1995.
14. It is found that the requested records are public records within the meaning of 1-18a(d), G.S.
15. The respondent contends that the requested records are exempt from disclosure pursuant to 1-19(b)(1), (4) and (10), G.S.
16. Section 1-19(b)(4), G.S., allows an agency to withold from disclosure "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." [Emphasis added].
17. Section 1-18a(h)(3), G.S., defines "pending litigation" to mean:
(3) the agency's consideration of action to enforce or implement legal relief or a legal right.
18. It is concluded that the respondent, at the time of the complainants' request, was considering legal action within
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the meaning 1-18a(h)(3), G.S, to enforce or implement legal relief or a legal right with respect to the land acquisition dispute.
19. It is found that the requested records pertain to strategy and negotiation with respect to the respondent's consideration of legal action, as described in paragraph 18, above.
20. It is concluded that the requested records are exempt pursuant to 1-19(b)(4), G.S., and therefore the respondent did not violate the complainants' rights when it witheld the requested records from disclosure.
21. However, the Commission is troubled by the respondent's destruction of most of the requested records and his failure to keep a true copy of such records in accordance with sound record management practices.
22. With respect to the respondent's further claims of exemption, it is found that the respondent failed to prove that the requested records are exempt pursuant to 1-19(b)(1), G.S., as preliminary drafts or notes, and 1-19(b)(10), G.S., as communications privileged by the attorney-client relationship.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. The Commission strongly recommends that the respondent contact the State Public Records Administrator to apprise himself as to proper public record retention and management practices and to ensure his compliance with the state's public record retention and destruction statutes.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 1995.
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:
Larry Green and Preston Residents Against Annexation
c/o Richard D. Dixon, Esq.
58 Huntington Street
New London, CT 06320
Preston First Selectman
c/o Frank A. Manfredi, Esq.
Cotter, Greenfield, Manfredi & Lenes, P.C.
P.O. Box 6002
Yantic, CT 06389
Mr. Keith Fontaine
66 Franklin Street
Norwich, CT 06360
Elizabeth A. Leifert
Acting Clerk of the Commission