FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Jim Milardo,  

Complainant

 

against

Docket #FIC 1996-603

Chief, Middletown Fire Department; and Mayor, City of Middletown  

Respondents

September 10, 1997

The above-captioned matter was heard as a contested case on June 10, 1997, 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 are public agencies within the meaning of 1-18a(a), G.S.

By memorandum dated December 4, 1996, the complainant submitted a "re-request" to the respondent mayor for copies of records that he had requested from her in a letter dated September 19, 1996. The complainant indicated in his December 4, 1996 letter that he had received copies of requested overtime slips but had not received copies of requested time cards.

3. By memorandum dated December 4, 1996 to the respondent chief, the complainant requested a copy of an audiotape of a meeting held on or about November 14, 1996 attended by the fire department secretary, her union representative and the respondent chief ("November 14, 1996 tape").

By memoranda dated December 5, 1996 to the respondent chief, the complainant requested that he be provided with a copy of a document that was partially read at a Tri District Commission meeting on that date concerning a ruling by the city attorney pertaining to the city’s Superintendent of Fire Alarms and the Assistant Superintendent of Fire Alarms ("ruling" or "opinion"); and a copy of the tape of the December 3, 1996 Middletown Fire Commission meeting ("December 3, 1996 meeting tape") and meeting minutes.

5. Having failed to receive copies of all of the requested records, the complainant appealed to this Commission, by letter dated December 15, 1996 and filed December 19, 1996.

6. With respect to the complainant’s request to the respondent mayor, it is found that by letter dated September 19, 1996 to the respondent mayor and several other officials, including the city’s finance director, the complainant requested copies of certain of his time cards and overtime slips and that the respondent mayor, by memorandum dated September 20, 1996 to the respondent chief, and copied to the city’s finance director, directed him to comply with the complainant’s request.

7. It is also found that the respondent mayor did not further respond to the complainant’s request as set forth in his December 4, 1996 letter.

8. It is further found that the complainant received copies of his overtime records in a timely manner from the city’s department of public works and that such records are therefore not at issue in this case.

9. It is further found that the complainant received copies of the requested time cards from the city’s finance department at the end of December 1996.

10. It is further found that the time card records are not maintained by the respondent mayor, that the complainant should have directed his request to the city’s finance department and that the respondent mayor attempted to assist the complainant in obtaining access to such records. It is therefore concluded that the respondent mayor did not violate the Freedom of Information ("FOI") Act in this case.

11. The respondent chief provided the complainant with a copy of the requested November 14, 1996 tape and ruling by the city attorney at the hearing on this matter.

With respect to the complainant’s request for a copy of the December 3, 1996 meeting tape and minutes, it is found that by memorandum dated December 5, 1996, the acting deputy chief informed the complainant that no tape had been made of the subject meeting and that the minutes would be forwarded when they were available; the complainant ultimately received a copy of the requested minutes from the respondent chief sometime in May 1997.

Since the complainant received copies of the requested November 14, 1996 tape, minutes and ruling, the only issue remaining with respect to such records is whether they were provided promptly; and that the only issue with respect to the requested December 3, 1996 meeting tape, is whether such record exists.

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

15. Section 1-15(a), G.S., provides in relevant part:

"Any person applying in writing shall receive, promptly upon request, a plain or certified copy of a public record…."

16. With respect to the requested minutes, the respondent chief claims that a request for such minutes should have been directed to the Middletown Fire Commission.

17. It is found however, that the respondent chief acts as the recording secretary for the Middletown Fire Commission and is responsible for preparing its meeting minutes. Therefore, it was appropriate for the complainant to direct his request for the subject minutes to the respondent chief.

18. The respondent chief maintains that he thought the minutes had been sent to the complainant shortly after his request and that when he learned in May 1997 that the complainant had not in fact received them, he forwarded a copy to him immediately.

19. Although it may have only been an oversight, it is found that the subject minutes were not provided to the complainant promptly within the meaning of 1-15(a), G.S., and it is therefore concluded that the respondent chief violated the requirements of that provision with respect thereto.

20. With respect to the requested November 14, 1996 tape, it is found that by memorandum dated December 18, 1996, the respondent chief advised the complainant that the tape involved a personnel issue, that the meeting was not a public meeting and therefore, the tape was not a public record.

21. The respondent chief claims that he initially withheld disclosure of the November 14, 1996 tape because he had made an agreement with the subject employee and her union representative to keep it confidential.

22. However, it is found that in preparation for the hearing in this matter, by letter dated May 30, 1997, the respondent chief advised the subject employee and her union representative of the complainant’s request and informed them that they could object to its disclosure.

23. It is further found that both the subject employee and her union representative replied that they did not object to disclosure of the requested tape and that the respondent chief then offered to provide the complainant with a copy of the requested tape, and in fact, gave a copy to the complainant at the hearing on this matter.

24. It is found that the November 14, 1996 tape, which was made by the respondent chief, is a public record within the meaning of 1-18a(d), G.S.

25. It is also found that the respondent chief failed to prove that the November 14, 1996 tape was exempt from disclosure under the FOI Act or that a copy of it was provided promptly within the meaning of 1-15(a), G.S.; and it is therefore concluded that the respondent chief violated the requirements of that provision with respect thereto.

26. With respect to the requested ruling, it is found that in response to a letter from the chairman of the Tri-District Commission to a member of the city council, the respondent mayor sought an opinion from the city attorney concerning the Tri-District Commission’s authority over the city’s Superintendent of Fire Alarms and that the city attorney prepared such an opinion, which opinion was the subject of the complainant’s request.

27. It is also found that at a December 5, 1996 meeting of the Tri-District Commission, the subject opinion was partially read aloud by one of the commission members until he was informed by the deputy chief that it was confidential, at which point he apologized, stopped reading it aloud and gave an overview of its contents.

28. The respondent chief claims that he initially withheld disclosure of the requested ruling because it was privileged by the attorney-client relationship between the mayor and the city attorney but that just prior to the hearing in this matter, the mayor waived the privilege, at which time he offered to provide it to the complainant, and in fact, gave a copy to the complainant at the hearing in this matter.

29. In relevant part, 1-19(b)(10), G.S., permits the nondisclosure of "communications privileged by the attorney-client relationship…."

30. 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 (1984), cert. denied, 194 Conn. 801 (1984).

31. 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.

32. It is found that although the requested opinion contained communications otherwise privileged by the attorney-client relationship, the privilege with respect to such communications in this case had been waived on or before the December 5, 1996 Tri-District Commission meeting, the date of the complainant’s request, because the opinion had been shared with third persons and portions of it were read at a public meeting.

33. It is therefore concluded that the requested opinion was not exempt from disclosure pursuant to 1-19(b)(10), G.S., at the time of the complainant’s request because the privilege had already been waived by the mayor.

34. It is found therefore that the requested opinion was not provided to the complainant promptly within the meaning of 1-15(a), G.S., and it is therefore concluded that the respondent chief violated the requirements of that provision with respect thereto.

35. With respect to the requested December 3, 1996 meeting tape, although conflicting testimony was presented as to whether or not the subject meeting was tape-recorded, it is found that the Middletown Fire Commission did not begin the practice of tape-recording its meetings until after its December 3, 1996 meeting. Therefore, it is further found that no tape-recording exists that would be responsive to the complainant’s request.

36. Consequently, it is concluded that the respondent chief did not violate the FOI Act with respect to the complainant’s request for a copy of the December 3, 1996 meeting tape.

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

1. Henceforth the respondent chief shall strictly comply with the disclosure requirements set forth in 1-15(a), G.S.

2. The complaint is hereby dismissed against the respondent mayor.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 1997.

__________________________
Doris V. Luetjen
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:
Jim Milardo
c/o M. Hatcher Norris, Atty.
Butler, Norris, and Gold
254 Prospect Ave.
Hartford, CT 06106-2041

Chief, Middletown Fire Department; and Mayor, City of Middletown
c/o Trina A. Solecki, Atty.
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1996-603/tcg/09101997