FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Mahlon C. Sabo,  

Complainant

 

against

Docket #FIC 1997-041

Corporation Counsel, City of Torrington; Board of Public Safety, City of  Torrington; and City of Torrington,  

Respondents

October 24, 1997

The above-captioned matter was heard as a contested case on July 11, 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:

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

2. By letter dated December 30, 1996, the complainant requested that the respondent corporation counsel provide him with "copies of a report referred to as Mr. Glen Coe’s investigative report in the matter of the City of Torrington v. Chief Mahlon C. Sabo" (hereinafter "report"). In his December 30, 1996 letter the complainant also requested copies of all notes, tape recordings, telephone logs, and interviews used in compiling the report.

3. By letter dated January 13, 1997, Mr. Coe responded to and denied the complainant’s December 30, 1996 request.

4. Having failed to receive the requested report, the complainant appealed to this Commission by letter dated January 15, 1997 and filed January 21, 1997.

At the hearing on this matter, the complainant did not raise the issue of access to the requested notes, tape recordings, telephone logs, and interviews used in compiling the report and therefore that issue is deemed abandoned.

6. At the hearing, the respondents claimed that the requested report is exempt from disclosure pursuant to 1-19(b)(1), 1-19(c)(1), 1-19(b)(4) and 1-19(b)(10), G.S.

7. The requested report is a public record within the meaning of 1-18a(d). G.S.

8. Section 1-19(b)(1), G.S., provides that nothing in the Freedom of Information Act shall require the disclosure of:

preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

Section 1-19(c)(1), G.S., provides in relevant part that notwithstanding the provisions of 1-19(b)(1), G.S:

…disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….

10. It is found that the complainant is the chief of police for the City of Torrington and that he and the City had been sued by a Torrington police officer for alleged civil rights violations and that the City had settled the lawsuit.

11. It is also found that based upon some of the allegations made in the lawsuit described in paragraph 10, above, the respondent board recommended to the City Council and the City Council approved in May 1996 the hiring of Mr. Coe, an attorney, to investigate the allegations to determine whether the Chief had engaged in any wrongdoing.

12. It is further found that Attorney Coe conducted interviews, examined documents and prepared a report concerning his investigation, which report is the subject of the complainant’s request.

13. It is further found that in November 1996, Attorney Coe offered his report to the respondent board but the board declined to accept it at that time, indicating that the Chief was entitled to a hearing before it considered Coe’s report.

It is therefore found that the report is not a preliminary draft or note within the meaning of 1-19(b)(1), G.S., and further that even if it were a preliminary draft or note it was a report comprising part of the process by which governmental decisions are formulated within the meaning of 1-19(c)(1), G.S.

Consequently, it is concluded that the report is not exempt from disclosure under 1-19(b)(1) and (c)(1), G.S.

Section 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. It is found that on December 7, 1996, Attorney Coe provided the complainant with a notice of charges for alleged violations of the rules and regulations of the Torrington Police Department and a notice that the respondent board would hold hearings to determine whether disciplinary action against the complainant was warranted.

18. It is also found that the respondent board held hearings in December 1996 to consider whether disciplinary action should be taken against the chief but that as of the date of the hearing in this matter, the respondent board hadn’t concluded its hearings nor had it taken any disciplinary action against the chief.

19. The respondents contend that the subject report pertains to the strategy and negotiations with respect to the pending disciplinary hearings concerning the complainant.

Although the report might implicate strategy with respect to the pending disciplinary proceeding concerning the complainant, it might also contain nothing more than that which has already been provided to the complainant in other documents. Furthermore, it is noted that the respondents declined to present the report to the Commission for an in camera inspection.

21. It is therefore found that the respondents failed to prove that the report pertains to strategy with respect to the subject disciplinary proceeding and consequently, failed to prove, that the report is exempt from disclosure under 1-19(b)(4), G.S.

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

23. 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).

24. 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.

It is found that although Attorney Coe was initially engaged to conduct an investigation to determine whether the complainant had engaged in any wrongdoing and to report to the respondent board and the City Council, as noted in paragraphs 13, 17 and 18, of the findings above, his role dramatically changed. The respondent board declined to accept his report in November 1996. Rather, it instead directed him to bring and present charges against the complainant before the board in the context of a hearing to which the complainant was entitled. It is also found that during the course of these hearings that began in December 1996, and were not concluded as of the date of the hearing in this matter, Attorney Coe presented the case against the complainant to the respondent board.

26. It is therefore found that Attorney Coe did not act as a legal advisor to the respondent board and the report does not constitute privileged communications between an attorney and his client within the meaning of 1-19(b)(10), G.S.

27. Consequently, it is concluded that the report is not exempt from disclosure under 1-19(b)(10), G.S.

28. It is therefore concluded that the respondents violated 1-19(a) and 1-15(a), G.S., by failing to provide the complainant with a copy of the requested report.

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 provide the complainant with a copy of the requested report.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 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:
Mahlon C. Sabo
190 Hayden Hill Road
Torrington, CT 06790

Corporation Counsel, City of Torrington; Board of Public Safety, City of Torrington; and City of Torrington
c/o Albert G. Vasko, Esq.
Corporation Counsel
140 Main Street
Torrington, CT 06790

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-041/FD/tcg/10221997