FREEDOM OF INFORMATION
the Matter of a Complaint by
General Electric Company,
Docket #FIC 1998-089
State of Connecticut, Office of the Attorney General; and State
of Connecticut, Department of Environmental Protection,
The above-captioned matter, having been granted an expedited hearing pursuant to § 1-21i(b)(1), G.S., and § 1-21j-43(b) of the Regulations of Connecticut State Agencies, was heard as a contested case on April 22, 1998, 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(1), G.S.
2. On April 3, 1998, the complainant requested in writing that the respondents provide it with 96 documents, 76 of which are more specifically identified in paragraph 8 of the findings below, relating to the contamination of the Housatonic River, which documents had allegedly not been provided to the complainant pursuant to earlier requests concerning the same subject matter.
3. Between December 1997 and April 1998, the respondents provided the complainant with access to, or copies of, thousands of requested documents. However, the respondents notified the complainant on April 9, 1998 that they would not provide the documents requested in the complainants April 3, 1998 request, asserting the applicability of certain exemptions to disclosure.
4. By complaint and notice of appeal ("complaint") dated April 13, 1998, and filed with the Commission on the same date, the complainant alleged that the respondents denial of its April 3, 1998 request was in violation of the Freedom of Information ("FOI") Act. The complaint specifically requested that the Commission order the production of the requested documents after an expedited proceeding and an in camera inspection of such documents. The complainant also requested that the Commission award attorneys fees pursuant to § 1-21i(e), G.S.
5. Subsequently, by letter dated April 20, 1998, as amplified at the hearing in this matter, the complainant informed the Commission that the complainant was eliminating twenty documents from the purview of its complaint, because such documents had either been provided or are not needed at this time.
6. The Commission has granted the complainants request for an expedited proceeding and has ordered the production of the documents at issue for an in camera inspection by the Commission. Because the Commission lacks jurisdiction to award attorneys fees under § 1-21i(e), or any other provision of the FOI Act, it shall not further address that particular request of the complainant. Thus, the only remaining issue relates to whether or not the respondents violated the FOI Act by declining to provide any of the subject documents to the complainant.
7. Section 1-19(a), G.S., in relevant part, provides:
"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."
8. The 76 documents requested and not provided by the respondents may be characterized and identified as follows:
From Charles Fredettes Files
1. (CF1) Steno note book - handwritten notes taken by C. Fredette.
2. (CF2) Fax to Charlie Fredette from Mark Barrash dated 3/11/96.
3. (CF3) Memorandum to participants in the Housatonic River NRD Group from J. Lynn Cutler - dated June 1, 1995.
4. (CF4) Memorandum (undated) by C. Fredette re: Housatonic River PCB Contamination.
5. (CF5) Notes for Interview with Housatonic River Clean up Stakeholders.
6. (CF6) Agenda for May 11, 1995 GE/Trustee Meeting with C. Fredettes handwritten notes and Bob Smiths handwritten notes.
7. (CF7) Charlie Fredettes handwritten notes from HR NRD Meeting 4/13/95.
8. (CF9) Memorandum to: C. Fredette, B. Smith, from: J. Lynn Cutler, dated March 16, 1995 re: GE/Trustee meeting.
9. (CF10) Memorandum to Participants in the Housatonic River NRD Group, from J. Lynn Cutler, dated March 15, 1995.
10.(CF11) C. Fredettes handwritten notes re: HR NRD Meeting 2/23/94.
11.(CF12) Memo from J. Lynn Cutler dated 2/13/95 to Participants in the Housatonic River NRD Group.
12.(CF13) Memorandum from J. Lynn Cutler to C. Fredette and Bob Smith dated February 14, 1995 re: Biological Task Force.
13.(CF14) Memorandum re: Core Goals, Principles and Objectives - Undated.
14.(CF15) Memorandum to R. Moore, Deputy Commissioner from R. Smith, Chief Water Bureau dated 8/18/94 re: Housatonic River PCB Meetings.
15.(CF16) C. Fredettes handwritten notes on Housatonic River NRD Meetings.
16.(CF17) C. Fredettes handwritten notes from 9/21/94 Housatonic River NRD Conference Call.
17.(CF18) C. Fredettes handwritten notes for 8/17/94 Housatonic River NRD Meeting.
18.(CF19) Memo to Participants in GE - Housatonic River NRD meeting from Jay Buchanan re: 8/14/94 Meeting.
19.(CF20) C. Fredettes handwritten notes Housatonic River NRD Meeting 5/11/94.
20.(CF21) C. Fredettes handwritten notes of 2/7/94 Housatonic River NRD Meeting.
21.(CF23) 2 pages of undated handwritten notes of C. Fredette-Re: Connecticut GE Housatonic River NRD.
22.(CF24) Memo from J. Lynn Cutler dated June 15, 1995 - Re: Global Negotiations.
23.(CF25) Housatonic River NRDA: Preliminary Economic Damage Estimate.
24.(CF27) Letter to J. Charbonneau, U.S. DOJ from J. Looney, AAG, 7/18/97.
25.(CF28) Memorandum to A. Rocque, Asst. Comm. from J. Looney, AAG, 7/27/97.
26.(CF29) Technical Approach to Housatonic River NRA Assessment 5/13/97.
27.(CF30) Interdepartmental Memo to E. Parker from R. Smith, 4/7/97 re: Housatonic River Preliminary NRD Assessment.
28.(CF33) Fax to R. Jacobson and C. Webb from J. Looney re: Housatonic River Restoration Options.
29.(CF34) 9/30/97 Proposed statement of work, Housatonic River NRDA, Support for Injury Thresholds, by IEC.
30.(CF35) C. Fredettes handwritten notes of 8/19/97 Housatonic River/PCB meeting.
31.(CF36) Draft IEC NRD Damage Assessment Reports - dated 1/28/97, 11/22/96, 9/17/96, 12/11/96.
32.(CF37) Draft potential injury matrix 5/2/95.
33.(CF38) IEC Report re: economic considerations in NRD damage assessment.
34.(CF39) Memo from AAG Looney to Art Rocque re: NRD damages in H.R.
35.(CF40) Memo from R. Hyde to Rocque re: proposed restoration project for NRD.
36.(CF41) IEC memo from Unsworth to Barrash 10/7/96 re: prelim. habitat equiv. analysts in H.R.
37.(CF42) IEC to Barrash 3/11/96 re: prelim. est. of rec. NRD.
38.(CF44) Draft internal discussion document re: NRD settlement discussions undated.
39.(CF45) Draft position on averaging PCBs in sediments in H.R.
40.(CF46) Draft interagency global negotiation strategy - undated.
From John Looneys Files
41. (JL1) J. Looneys notes of 9/17/96 meeting with IEC re: NRD claims.
42. (JL2) 2/21/97 notes of conference call with IEC re: NRD claims.
43. (JL3) J. Looneys 12/11/96 notes of meeting with IEC re: NRD claims.
44. (JL4) J. Looneys 12/17/96 notes of meeting with IEC re: NRD claims.
45. (JL5) 5/21/97 fax from Weinberg to Looney re: draft NRD assessment approach.
46. (JL6) J. Looneys 4/8/97 notes of meeting re: Housatonic River issues.
47. (JL7) Proposed scope of work for IEC NRD Assessment dated 2/14/97.
48. (JL9) 11/22/96 IEC letter w/ attachments involving injury assessment for NRD pursuant to contract.
49.(JL10) 1/28/97 final IEC report entitled "Housatonic River Preliminary Natural Resource Damage Assessment."
50.(JL11) Memo from AAG Looney & Webb to AAG Rubin re: GE contamination in H.R.
51.(JL12) J. Looneys notes of 5/15/95 meeting re: NRD and river remediation processes, including draft documents.
52.(JL13) J. Looneys notes of 5/9 and 5/11/95 meetings re: upcoming meetings w/ GE.
53.(JL14) J. Looneys notes of 1/27/95 meeting on NRD issues w/ GE.
54.(JL15) J. Looneys notes of 5/17/94 meeting on NRD issues w/ GE.
55.(JL16) J. Looneys notes of 3/22/94 meeting re: various H.R. issues including PCB contamination, NRD and remediation.
56.(JL17) J. Looneys notes of 2/7/94 NRD meeting re: GE PCB contamination.
57.(JL18) IEC proposal for H.R. restoration options.
58.(JL19) Memo from AAG Looney and Webb to Edward Parker, DEP, dated 12/4/97 re: settlement proposal to GE.
59.(JL20) 12/5/97 memo from Ralph Child to Governments re: GE mediation.
60.(JL21) Background notes for governments use for GE mediation settlement proposal.
61.(JL22) 11/11/97 IEC memo re: H.R. restoration options.
62.(JL23) 11/14/97 IEC memo re: NRD settlement presentation.
63.(JL24) J. Looneys 12/8/97 notes from government meeting re: settlement proposal.
64.(JL25) 10/15/97 IEC memo. Re: Draft H.R. restoration options.
65.(JL26) 9/30/97 IEC Proposed Statement of Work for H.R. NRD assessment.
66.(JL28) J. Looneys 10/1/97 notes of NRD meeting.
From Richard Webbs Files
67. (RW1) Memo dated 12/19/96 from J. Looney, AAG to A. Rocque re: H.R. NRD.
68. (RW2) IEC draft Recreational damages on H.R. dated 11/96.
69. (RW3) IEC draft H.R. preliminary NRD assessment.
70. (RW4) NRD proposal for internal govt. discussion 4/12/96.
71. (RW5) Memo from AAG Looney to AAG Rubin re: HR Preliminary NRD assessment Initial Results 9/18/96.
72. (RW8) Memo from AAG Webb & Looney to AAG Rubin re: GE contamination in H.R.
From Tracy Iotts Files
73. (TI7) Memo dated 10/3/97 from M. Harvey re: proposed comments on eco. Risk.
From Fisheries Files
74. (FF1) Facsimile from Industrial Economics transmitted on October 24, 1996 to the U.S. Fish & Wildlife Service and other federal and state officials. This document lists factors to be considered in developing natural resource restoration projects for the Housatonic River.
75. (FF2) Draft report prepared by Industrial Economics regarding natural resource damages in the Housatonic River that was transmitted by facsimile on August 12, 1996.
76. (FF3) Draft report prepared by Industrial Economics regarding natural resource damages in the Housatonic River that was transmitted by facsimile on August 22, 1996.
9. It is found that the requested documents are public records within the meaning of § 1-19(a), G.S.
10. The respondents claim that each of the requested records at issue falls into one or more of three exemptions to disclosure under the FOI Act. If a record is exempt from disclosure under one exemption, it is unnecessary to consider any other exemption asserted with respect to that record. Therefore, this decision shall list in paragraphs 14, 20, and 26 of the findings below, those records found to be exempt under one of the exemptions asserted.
11. The respondents contend that the following requested records are exempt from public disclosure pursuant to § 1-19(b)(1), G.S.: ICI #1998-089-1, 3, 6, 7, 10, 15, 16, 17, 19, 20, 21, 22, 23, 26, 30, 31, 32, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50 (attachments only), 51, 52, 53, 54, 55, 56, 57, 59, 63, 65, 66, 68, 69, 70, 72, 73, 74, 75, and 76.
12. Section 1-19(b)(1), G.S., provides that nothing in the FOI Act shall be construed to require 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. . . ."
13. In this regard, § 1-19(c)(1), G.S., further provides:
"Notwithstanding the provisions of subdivisions (1) . . . of subsection (b) of this section, 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. . . ."
14. It is found that the following records, or portions thereof as indicated, constitute preliminary drafts or notes, within the meaning of § 1-19(b)(1), G.S., are not subject to disclosure under § 1-19(c)(1), G.S., because they do not constitute interagency or intra-agency memoranda or letters, advisory opinions, recommendations or reports comprising part of the process by which governmental decisions and policies are formulated, or are otherwise exempt from disclosure under that section: ICI #1998-089-1, 6 (1st 3 pages only), 7, 10, 15, 16 (1st 2 pages only), 17 (1st 2 pages only), 19, 20, 21, 22 (3rd page only), 30, 41, 42, 43, 44, 46, 51 (1st 2 pages only), 52, 53, 54, 55, 56, 63, and 66.
15. The respondents contend that all of the requested records, except ICI #1998-089-66, are exempt from public disclosure pursuant to § 1-19(b)(4).
16. Section 1-19(b)(4), G.S., provides that nothing in the FOI Act shall be construed to require disclosure 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. In this regard, § 1-18a(9), G.S., defines "pending litigation," as:
"(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency's consideration of action to enforce or implement legal relief or a legal right."
18. It is found that the respondents have been considering action against the complainant to enforce or implement legal relief or a legal right, within the meaning of § 1-18a(9), G.S., since at least late 1994.
19. The complainant argues that, at the least, some portions of the following records ought to be disclosed because the complainant believes they contain facts prepared by the consulting firm, Industrial Economics, and such facts do not constitute "strategy," within the meaning of § 1-19(b)(4), G.S.: ICI#1998-089-23, 26, 29, 31, 33, 36, 37, 47, 48, 49, 57, 61, 64, 65, 68, 70, and 74.
20. It is found, however, that the following records, or portions thereof as indicated, constitute records pertaining to strategy or negotiations with respect to pending litigation, within the meaning of § 1-19(b)(4), G.S., and are therefore exempt from disclosure under that section: ICI #1998-089-3 (2nd - 10th pages only), 6 (4th page only), 12 (2nd and 3rd pages only), 13, 14, 22 (5th - 9th pages only), 23 (all but the last page), 24 (6th - 12th pages only), 25 (last 4 paragraphs only), 26, 27 (all but the 1st page), 28 (3rd - 9th pages only), 29 (2nd - 4th pages only), 31 (all but the first page), 32, 33, 34 (all but the 1st page), 36, 37, 38, 39, 40, 45 (all but the 1st page), 47 (all but the 1st page), 48 (subsections b - e only), 49 (all but the 1st page), 50 (3rd page and 5th - 16th pages only), 51 (3rd - 14th pages only), 57 (all but the 1st page), 58, 59 (3rd - 5th pages only), 60, 61, 62 (all but the 1st page), 64 (2nd - 8th pages only), 65 (all but the 1st page), 67, 68, 69, 70 (2nd - 4th pages only), 71, 72 (3rd page and 5th - 16th pages only), 73, 74 (2nd - 14th pages only), 75, and 76.
21. The complainant argues that the respondents have waived the § § 1-19(b)(1) and (4), G.S., exemptions, or, in the alternative the Commission ought to deem such exemptions waived, as a matter of public policy, by virtue of the respondents previously disclosing similarly exempt records or previously disclosing records of a similar kind or those closely related to the requested records.
22. The Commission, however, concludes that waiver of an exemption by a public agency in one instance does not act to abrogate the claim of a statutory exemption under the FOI Act in every other instance. The Commission also concludes that it lacks the power to deem FOI Act exemptions waived as a matter of public policy in order to assure the complete or non-selective disclosure of public records.
23. The respondents contend that the following requested records are exempt from public disclosure pursuant to § 1-19(b)(10), G.S.: ICI #1998-089-25, 28, 29, 31, 34, 36, 37, 41, 42, 43, 44, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 58, 61, 63, 66, 67, and 71.
24. Section 1-19(b)(10), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of "communications privileged by the attorney-client relationship. . . ."
25. 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). 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.
26. It is found that, of the records and portions of records not referenced in paragraphs 14 and 20, above, the following records, or portions thereof as indicated, are privileged by the attorney-client relationship, within the meaning of § 1-19(b)(10), G.S., and are therefore exempt from disclosure under that section: : none.
27. It is therefore concluded that the respondents violated § § 1-19(a), G.S., by failing to provide the complainant with a copy of those records, or portions of records, identified in paragraphs 11, 15, and 23, above, and which are not exempt from disclosure, in whole or in part, as listed in paragraphs 14, 20, and 26, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall, by the end of business on April 29, 1998, provide the complainant with a copy of the following records, or portions of records, as herein indicated: ICI #1998-089-2, 3 (1st page only), 4, 5, 6 (5th page only), 8, 9, 11, 12 (1st and 4th pages only), 16 (3rd and 4th pages only), 17 (3rd and 4th pages only), 18, 22 (1st, 2nd and 4th pages only), 23 (last page only), 24 (1st - 5th pages only), 25 (all but the last 4 paragraphs), 27 (1st page only), 28 (1st and 2nd pages only), 29 (1st page only), 31 (1st page only), 34 (1st page only), 35, 45 (1st page only), 47 (1st page only), 48 (subsection a only), 49 (1st page only), 50 (1st, 2nd and 4th pages only), 57 (1st page only), 59 (1st and 2nd pages only), 62 (1st page only), 64 (1st page only), 65 (1st page only), 70 (1st page only), 72 (1st, 2nd and 4th pages only), and 74 (1st page only).
2. The Commission wishes to thank the parties and their counsel for their extraordinary efforts in complying with the demands placed on them by these expedited proceedings and for the highly professional presentation of their cases.
Approved by Order of the Freedom of Information Commission at its special meeting of April 28, 1998.
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:
General Electric Company
c/o Charles T. Lee, Esq.
Paul, Hastings, Janofsky & Walker LLP
1055 Washington Boulevard
Stamford, CT. 06901-2217
State of Connecticut, Office of the Attorney General; and
State of Connecticut, Department of Environmental Protection
c/o John M. Looney, Esq. and Richard F. Webb, Esq.
Assistant Attorneys General
P. O. Box 120
Hartford, CT. 06141-0120
Doris V. Luetjen
Acting Clerk of the Commission