FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-178
February 13, 1997
In the Matter of a Complaint by Marc Mittaud, Complainant
against
Louis Timolat, Sanitarian, Town of Canaan; Peter Lawson, First Selectman, Town of Canaan; Louis Timolat, Second Selectman, Town of Canaan; and Town Attorney, Town of Canaan, Respondents

The above-captioned matter was heard as a contested case on November 14, 1996, 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 sanitarian, first selectman and second selectman are public agencies within the meaning of 1-18a(a), G.S.

2. By letter telefaxed to the respondent town attorney on February 21, 1996, the complainant requested that she provide him with copies of all correspondence concerning the transfer of the Washburn Automotive property in January, 1995 and particularly with the payoff letter to attorney Fitzgerald and all correspondence to the Town of Canaan.

3. By letter dated February 26, 1996, in the absence of the respondent town attorney and on her behalf, her law partner denied the complainant’s request identified in paragraph 2, above, on the basis that the client’s consent was needed for her to comply. She recommended that the complainant seek the board of selectmen’s consent directly, and that if consent were granted, he would be charged for locating and copying the documents.

4. By letter dated February 27, 1996, and filed on February 29, 1996, the complainant appealed to the Commission alleging, among other things, that the respondent town attorney violated the Freedom of Information ("FOI") Act by denying him access to the requested records. He requested the imposition of civil penalties against the respondents.

5. With respect to the allegations contained in paragraph 4, above, the respondent town attorney contends that:

a. she is not a public agency and her files are not subject to the disclosure requirements of the FOI Act pursuant to the functional equivalency test outlined in Board of Trustees v. FOI Commission, 181 Conn. 544, 554 (1980);

b. the complainant should have made his request directly to the tax collector,who has the same records as those requested by the respondent town attorney or to the board of selectmen; and,

c. the requested records are exempt from disclosure pursuant to 1-19(b)(10), G.S. and rule 1.6 of the rules of professional conduct.

6. Section 1-18a(a), G.S., defines a public agency as any "official of …any city, town, borough … or other district or other political subdivision of the state …"

7. The Commission takes administrative notice of the 1996 state register and manual, which lists the respondent town attorney as the town attorney for the town of Canaan, Connecticut.

8. It is concluded that when acting in the capacity as the town attorney, the respondent town attorney is an authority or official of the town, and therefore a public agency within the meaning of 1-18a(a), G.S. Accordingly, the functional equivalency test enunciated in Board of Trustees, supra, is inapplicable under the facts of this case.

9. Section 1-19(a), G.S., in relevant part states: [e]xcept as otherwise provided by federal law or state statute, all records maintained or kept on file by any public agency … shall be public records and every person shall have the right to inspect such records promptly … or to receive a copy of such records in accordance with the provisions of section 1-15."

10. Section 1-18a(d), G.S., provides: "[p]ublic records or files" means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method."

11. It is found that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

12. It is found that the respondent town attorney’s claim identified in paragraph 5b., above, fails to state a claim of exemption pursuant to the provisions of the FOI Act.

13. Rule 1.6 of the rules of professional conduct does not provide an exemption to the disclosure of records under the FOI Act.

14. Section 1-19(b)(10), G.S., however, permits the nondisclosure of "…communications privileged by the attorney-client relationship."

15. The attorney-client privilege protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice. Ullmann v. State, 230 Conn. 698, 711 (1994). It is strictly construed because it "tends to prevent a full disclosure of the truth…. Id. At 710. The privilege is waived when statements of the communication are made to third parties. Id. At 711; See LaFaive v. DiLorento, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

16. It is found that the respondent town attorney failed to prove that the records constitute communications between attorney and client related to legal advice given by the attorney or sought by the client; nor that they were communications made in confidence between client and attorney.

17. It is also found that the requested records are publicly available at the town hall.

18. It is therefore concluded that the respondent town attorney’s claim of exemption pursuant to 1-19(b)(10), G.S., is inapplicable under the facts of this case.

19. It is concluded that the respondent town attorney violated 1-19(a), G.S., by failing to comply with the complainant’s request under the facts of this case.

20. The Commission notes that the complaint in this matter fails to fairly state allegations of violations of the FOI Act with respect to the respondents sanitarian, first selectman and second selectman.

21. In its discretion, the Commission declines to issue civil penalties under the facts of this case.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondent town attorney shall forthwith provide the complainant with access to the requested records, more fully described in paragraph 2 of the findings, above. At the complainant’s election, the respondent town attorney shall provide copies of any such records requested by the complainant at a rate not to exceed $.50 per page.

2. Henceforth, the respondent town attorney shall strictly comply with the provisions of 1-19(a) and 1-15(a), G.S.

3. The complaint against the respondents sanitarian, first selectman and second selectman is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

Marc A. Mittaud
43 Dublin Road
Falls Village, CT 06031

Louis Timolat, Sanitarian, Town of Canaan; Peter Lawson, First Selectman, Town of Canaan; Louis Timolat, Second Selectman, Town of Canaan; and Town Attorney, Town of Canaan
c/o Judith Dixon, Esq.
Dixon & Brooks
45 Center Street
Winsted, CT 06098

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-178/FD/eal/02211997