FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-233
February 13, 1997
In the Matter of a Complaint by Edward Peruta,Complainant
against
J. A. Camille Vatour, Superintendent, of Schools, Rocky Hill Public Schools; Michael Bocchini, Chairman, Board of Education, Town of Rocky Hill; Curtis Clemens, Sr.; Charles M. Wisnioski; Laurie Boske; Sondra L. Dellaripa; Lori Littmann; Glenn R. Parent; R. Jeffrey Sands; Frank Szeps; and Board of Education, Town of Rocky Hill Respondents

The above-captioned matter was heard as a contested case on December 13, 1996, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket # FIC 1996-247, Edward Peruta v. J. A. Camile Vatour, Superintendent of Schools, Rocky Hill Public Schools; Michael Bocchini, Chairman, Board of Education, Town of Rocky Hill; Curtis Clemens, Sr.; Charles M. Wisnioski; Laurie Boske; Sondra L. Dellaripa; Lori Littman; Glenn R. Parent; R. Jeffrey Sands; Frank Szeps; and Board of Education, Town of Rocky Hill, was consolidated with the above-captioned case for purpose of hearing.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. It is found that on May 3, 1996 the complainant requested that the respondents provide him with access to inspect all written legal opinions rendered to, or maintained by the respondent board (hereinafter "requested records)."

3. Having failed to receive access to the requested records, the complainant, by letter dated and filed with the Commission on May 14, 1996, alleged that the respondents violated the Freedom of Information ("FOI") Act by denying him access to inspect the requested records. The complainant requested that the Commission impose civil penalties upon the respondents.

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

5. The respondents contend that the requested records are exempt from disclosure pursuant to 1-19(b)(10), G.S., which permits the nondisclosure of "communications privileged by the attorney-client relationship."

6. The exemption for attorney-client privileged communications contained in 1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:

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 may be waived.

Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

7. 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, supra.

8. Following the hearing on this matter, the respondents submitted the requested records to the Commission for an in camera inspection.

9. It is found that the requested records consist of two types: the first are opinions written by the respondents’ attorney to the respondent superintendent, former superintendents and other Rocky Hill Public Schools employees in response to various requests for legal advice (hereinafter "solicited opinions"). The second are memoranda written by the respondents’ attorney to all public sector, school board and public education clients of the respondents’ attorney and are not responses to requests for such memoranda (hereinafter "unsolicited opinions").

10. It is found that the unsolicited opinions are not communications related to legal advice sought by a client; nor are they communications made in confidence between the respondents and their attorney.

11. It is concluded that the unsolicited opinions are not privileged communications within the meaning of 1-19(b)(10), G.S., and are therefore not exempt from disclosure.

12. It is found that the solicited opinions are communications between attorney, in the capacity of legal adviser, and client, and contain legal advice sought by the client and provided in confidence.

13. It is found that the solicited opinions are communications that contain client confidences.

14. It is concluded that the solicited opinions are privileged communications within the meaning of 1-19(b)(10), G.S.

15. Further, it is found that the privilege was not waived with respect to the solicited opinions.

16. Consequently, it is concluded that the solicited opinions are exempt from disclosure pursuant to 1-19(b)(10), G.S.

17. It is also concluded that the respondents did not violate 1-19(a), G.S., when they failed to provide the complainant with access to inspect the solicited opinions, described in paragraphs 9, and 12 through 16, inclusive, of the findings, above. However, the respondents violated 1-19(a), G.S., when they failed to provide the complainant with access to inspect the unsolicited opinions described in paragraphs 9 through 11, inclusive, of the findings, above.

18. With respect to the complainant’s claim that the requested records are disclosable under the terms of a written agreement between the complainant and the Rocky Hill Town Manager, it is concluded that this Commission has no jurisdiction to enforce the terms of such agreement.

19. The Commission in its discretion declines to impose civil penalties in this matter.

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

1. The respondents shall forthwith provide the complainant with access to inspect the unsolicited opinions as more fully described in paragraphs 9 through 11, inclusive, of the findings, above.

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:

Edward Peruta
38 Parish Road
Rocky Hill, CT 06067

J.A. Camille Vatour
Superintendent of Schools
Rocky Hill Public Schools
Rocky Hill, CT 06067

Michael J. Bocchini, Chairman
Board of Education
Town of Rocky Hill
311 Charter Road
Rocky Hill, CT 06071

Curtis B. Clemens, Sr.
222 Ridgewood Drive
Rocky Hill, CT 06067

Charles Wisnioski
666 Old Main Street
Rocky Hill, CT 06067

Laurie J. Boske
18 Highland Street
Rocky Hill, CT 06067

Sondra L. Dellaripa
93 Berkshire Road
Rocky Hill, CT 06067

Lori R. Littmann
165 Catherine Drive
Rocky Hill, CT 06067

Glenn R. Parent
31 Berkshire Road
Rocky Hill, CT 06067

Jeffrey Sands
30 Stagecoach Lane
Rocky Hill, CT 06067

Frank Szeps
135 France Street
Rocky Hill, CT 06067

Board of Education
Town of Rocky Hill
Rocky Hill, CT 06067

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-233/FD/eal/02211997