FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1997-072
October 22, 1997

In the Matter of a Complaint by Carl J. Liano, Complainant
against
Robert D. Moore, Benefits Manager, Office of Workers’ Compensation, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport and City of Bridgeport Respondents

The above-captioned matter was heard as a contested case on July 31, 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.

2. It is found that on February 3, 1997, the complainant visited respondent Moore’s office and at that time requested that he be permitted to inspect and obtain a copy of the following records (hereinafter "requested records"):

a. January 1997 letter from attorney Jason M. Dodge, concerning changes in the complainant’s heart and hypertension benefits being paid by the city of Bridgeport ("city");

b. September, October, November and December 1996 city "CAP" adjustments for heart and hypertension recipients; and

c. city police overtime sheets for the month of December 1996.

3. It is found that at the time of the complainant’s visit, described in paragraph 2 of the findings, above, respondent Moore requested that the complainant put his request in writing, and the complainant reluctantly complied.

4. It is found that respondent Moore then acknowledged receipt of the complainant’s written request by letter dated February 3, 1997, informed the complainant that such request was being processed, and that he would follow up as soon as possible.

5. It is also found that by letter dated February 6, 1997, respondent Moore followed up informing the complainant that he could have access to inspect and copy the requested records, as described in paragraph 2b. and 2c., of the findings, above, however, he denied the complainant’s request with respect to the requested record, as described in paragraph 2a. of the findings, above.

6. By letter of complaint, dated and filed on February 18, 1997, and supplemented by letter dated March 20, 1997 and filed on March 21, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him prompt access to inspect and copy the requested records. The complainant requested that the Commission impose civil penalties upon the respondents.

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

8. Section 1-19(a), G.S., provides, in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.

9. With respect to the requested record as described in paragraph 2a. of the findings, above, the respondents contend that the subject letter is exempt from disclosure pursuant to the attorney-client privilege, as set forth at 1-19(b)(10), G.S.

10. Section 1-19(b)(10), G.S., permits the nondisclosure of "[c]ommunications privileged by the attorney-client relationship."

11. 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).

12. 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.

13. Following the hearing on this matter, the Commission inspected the subject letter in camera.

14. It is found that the subject letter is a communication between attorney and client, in the attorney’s capacity as legal adviser.

15. It is also found that the subject letter contains legal advice provided in confidence.

16. It is therefore, concluded that the subject letter is a privileged communication within the meaning of 1-19(b)(10), G.S.

17. Further, it is found that the privilege was not waived and therefore, the subject letter is permissively exempt from disclosure pursuant to 1-19(b)(10), G.S.

18. It is therefore, concluded that the respondents did not violate 1-19(a), G.S., when they failed to provide the complainant with access to inspect and copy the subject letter, described in paragraph 2a. of the findings, above.

19. With respect to the requested records as described in paragraph 2b. and 2c. of the findings, above, it is found that on February 3, 1997, at the time of the complainant’s visit and records request, the complainant wanted to be provided with copies of the requested records immediately.

20. It is found however, that respondent Moore was on his way out, and was unable to provide the complainant with immediate access to inspect and receive a copy of the requested records.

21. It is also found that the complainant and the respondents are, and have been involved in Workers’ Compensation dispute concerning the complainant’s heart and hypertension benefits, and under the circumstances, and in order to be clear as to precisely what records the complainant was requesting at the time of his visit, respondent Moore asked the complainant to put his request in writing.

22. In addition, 1-15(a), G.S., provides that "[A]ny person applying in writing shall receive, promptly upon request, a . . . copy of any public record." [Emphasis added.]

23. At the hearing into this matter, the complainant indicated that he wanted copies of all of the requested records on February 3, 1997.

24. It is concluded that pursuant to 1-15(a), G.S., respondent Moore did not violate 1-15(a), G.S., when he asked the complainant to put his request for copies of records in writing.

25. It is also found that with respect to the requested records as described in paragraph 2c. of the findings, above, respondent Moore provided the complainant with a copy of such records on February 3, 1997 at the time of the complainant’s visit, and the complainant acknowledged receipt of such records in his February 3, 1997 letter, described in paragraphs 3 and 4 of the findings, above.

26. It is also found that respondent Moore again in his February 6, 1997 response letter to the complainant, described in paragraph 5 of the findings, above, provided the complainant with a copy of the requested records as described in paragraph 2c. of the findings, above.

27. It is further found that respondent Moore in his February 6, 1997 response letter to the complainant, informed the complainant that he could inspect and get a copy of the requested records as described in paragraph 2b. of the findings, above.

28. It is therefore, concluded that with respect to the requested records as described in paragraph 2b. and 2c. of the findings, above, respondent Moore provided the complainant with access to inspect and copy such records promptly, and therefore, did not violate 1-15(a) and 1-19(a), G.S.

39. With respect to all of the requested records, it is found that respondent Moore is the custodian of such records and the official to whom the complainant directed his records request.

30. Consequently, it is found that the respondent city attorney is not a proper named party to this appeal.

31. The Commission therefore, declines to take jurisdiction over the respondent city attorney 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 complaint is hereby dismissed. Therefore, no civil penalty is imposed.

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:
Carl J. Liano
29 Centerview Drive
Shelton, CT 06484

Robert D. Moore, Benefits Manager, Office of Workers’ Compensation, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport and City of Bridgeport
c/o John H. Barton
Office of the City Attorney
1087 Broad Street
Bridgeport, CT 06604

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-072/FD/tcg/10221997