FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
George W. Sicaras,
against Docket #FIC 95-66
Finance Department, City of Hartford,
Respondent January 24, 1996
The above-captioned matter was heard as a contested case on September 28, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The Commission thereafter substituted the Finance Department, City of Hartford (hereinafter "finance department") for the named respondent Hartford Corporation Counsel (hereinafter "corporation counsel").
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent finance department is a public agency within the meaning of 1-18a(a), G.S.
2. By letter dated January 21, 1995, the complainant requested from the corporation counsel:
"[C]opies of any and all invoices, bills, insurance reimbursement, insurance claims presented by the City or its agent(s), records of payments, and other such documents which exist concerning the legal representation of the City by the firm of Updike, Kelly and Spellacy of Hartford in the matter of George W. Sicaras v. The City of Hartford, Wilson W. Gaitor, et al, Docket #CV-87-0337342-S, ... from July 1, 1987 through and including the present day."
The complainant offered to pay any appropriate fee for such copies not in excess of $50.00.
3. It is found that the respondent finance department maintains records which are responsive to the complainant's request and that such records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
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4. It is found that at all times material to this complaint, the corporation counsel was acting on behalf of the respondent finance department.
5. It is found that under cover letter dated February 6, 1995, the corporation counsel provided the complainant with 38 pages of bills for legal services from 1990-1994, but had redacted all entries which described the legal services provided.
6. It is found that by letters dated February 10 and February 28, 1995, the complainant notified the corporation counsel that he had not received records for the period from 1987 to 1990 and that he was still seeking access to the redacted portions of the records provided.
7. By letter dated March 9, 1995, the corporation counsel informed the complainant that the billing records for legal services from 1987 to 1990 were on microfilm, and that to retrieve such records, the respondent would need to: search a computer data base containing the index to such records; identify and locate the requested records; photocopy such records; and then review the records and extract exempt material. The corporation counsel stated that the complainant would be charged the hourly rate for the labor expended in responding to his request, which was later determined to be $17.20 per hour, plus fifty cents per page for each photocopy.
8. By letter dated March 12, 1995, and filed on March 16, 1995, the complainant appealed to the Commission and alleged that the corporation counsel had (1) failed to provide him with all the records which he had requested and (2) charged excessive fees for copies of certain records.
9. Section 1-15(a)(2), G.S., provides that the fee for a plain copy of a public record provided by a municipal public agency shall not exceed fifty cents per page.
10. Section 1-15(b), G.S., provides that the fee for any copy of a computer-stored public record, other than a printout, "shall not exceed the cost thereof to the public agency."
11. It is found, however, that the billing records from 1987-1990 are stored on microfilm and are not computer-stored records within the meaning of 1-15(b), G.S.
12. It is therefore concluded that the respondent finance department charged the complainant excessive fees for copies of the requested billing records covering the period from 1987-1990, in violation of 1-15(a)(2), G.S; and failed to provide such records promptly, in violation of 1-19(a), G.S.
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13. With respect to the redacted copies of billings from 1990-1994 which were provided to the complainant, the corporation counsel submitted unredacted copies of such records to the Commission for an in camera inspection.
14. The respondent maintains that the descriptions of legal services are exempt from disclosure under the attorney work-product doctrine, and pursuant to 1-19(b)(4) and 1-19(b)(10), G.S.
15. It is found that the attorney work-product doctrine does not state an exemption to the requirements of the Freedom of Information Act under either 1-19(a) or 1-19(b), G.S., and it is concluded therefore that the description of services portion of the billing is not exempt from disclosure on that basis.
16. In pertinent part, 1-19(b)(4), G.S., permits the nondisclosure of:
"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."
17. Section 1-18a(h), G.S., states, in material part:
"Pending litigation" means ... (2) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (3) the agency's consideration of action to enforce or implement legal relief or a legal right.
18. It is found that the complainant is a former city employee and that he instituted a legal action against the City of Hartford in 1987 concerning his pension, which action was scheduled for trial on March 15, 1994; and that the parties reached a settlement agreement prior to the commencement of the trial.
19. It is further found, however, that the city filed a motion to enforce the settlement agreement referenced in paragraph 18, above, which motion is pending in Superior Court.
20. It is concluded that the matters described in paragraphs 18 and 19, above, constitute pending litigation within the meaning of 1-18a(h), G.S.
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21. The respondent further claims that disclosure of the redacted portions of the billing records would reveal the city's legal strategy in the pending litigation because they contain the names of potential witnesses at trial.
22. Based upon a review of the records submitted for in camera inspection, it is found that portions of such records contain the names of potential witnesses but only indicate that particular attorneys reviewed their deposition transcripts: The records do not contain any evaluations of the substance of the transcripts or reveal which witnesses are likely to be called.
23. It is further found that portions of the in camera records indicate that an attorney attended settlement negotiations or worked on a proposed settlement agreement, but do not indicate the substance of either the negotiations or the proposed agreement.
24. It is concluded therefore that the redacted description of services portions of the billing records do not pertain to either strategy or negotiations with respect to pending litigation and therefore are not exempt from disclosure pursuant to 1-19(b)(4), G.S.
25. Section 1-19(b)(10), G.S., provides, in pertinent part, that "nothing in the [Freedom of Information Act] shall require disclosure of ... communications privileged by the attorney-client relationship."
26. Connecticut's common law rule of attorney-client privilege has been stated as follows:
The attorney-client privilege protects communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice.
Ullman v. State, 230 Conn. 698 (1994).
27. It is found that the in camera records do not contain any confidential communications between the client city and its attorneys.
28. It is concluded therefore that the subject billing records are not exempt from disclosure pursuant to 1-19(b)(10), G.S.
29. It is finally concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., when it failed to provide the complainant with unredacted copies of the requested billing records.
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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: (a) locate and retrieve the microfilm records of the requested legal bills from 1987-1990, and provide the complainant with photocopies of such records; and (b) provide the complainant with unredacted copies of the requested billing records from 1990 forward, both free of charge.
2. Henceforth, the respondent shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.
3. The Commission admonishes the respondent for attempting to charge the complainant for its own cumbersome manner of storing public records.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 1996.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 95-66 Page 6
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:
George W. Sicaras
46 Bay Roc Road
Wethersfield, CT 06109
Finance Department, City of Hartford
c/o John P. Shea, Sr., Esq.
Office of the Corporation Counsel
550 Main Street
Hartford, CT 06103
Elizabeth A. Leifert
Acting Clerk of the Commission