FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Linda W. Alderman,|
|against||Docket #FIC 1998-180|
|State of Connecticut,
Department of Environmental
|Respondents||August 12, 1998|
The above-captioned matter was heard as a contested case on July 15, 1998, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-18a(1), G.S.
2. By letter dated June 30, 1998, the respondent (hereinafter DEP) informed 21 homeowners at Millbrook Condominiums, East Windsor, who are the clients of the complainant, that their property is subject to remediation and that the DEP planned to take full title to same. In that letter, the DEP also offered to purchase the homeowners units for the purchase price or fair market value as of 1995, using funds provided by respondents to DEP Order SRD-069, a separate administrative matter before the DEP. The letter provided that without universal acceptance of the offer, the DEP would condemn the property at fair market value as contaminated, or, in the alternative, refer the issue to the United States Environmental Protection Agency. The letter imposed a deadline of July 17, 1998, by which the owners must accept the offer or face condemnation of the property.
3. On July 1, 1998, the DEP announced through a press release that, by virtue of a funding agreement with respondents to an existing DEP order, the DEP planned to purchase 21 units at Millbrook Condominiums.
4. By letter dated July 9, 1998, the complainant requested that Jeffrey Wilcox, a DEP employee involved in the Millbrook Condominiums matter, provide her with copies of any and all correspondence, minutes, notes from any meetings, and any other notes or memoranda from January 1, 1998, to the present related to the Millbrook Condominiums and the negotiated settlement between the DEP and the respondents in the DEP Order SRD-069.
5. By letter dated July 9, 1998, the DEP informed the complainant that it had not pursued or obtained a negotiated settlement with the respondents to its order Order SRD-069. The DEP further informed that complainant that all file materials at the desk of Jeffrey Wilcox would be made available for the complainants inspection and copying.
6. By letter dated July 10, 1998, the complainant clarified her request to encompass all correspondence, minutes or notes or other documents that formed the basis for the DEP to represent that it had funding commitments from the respondents to its Order SRD-069.
7. By letter dated and filed July 13, 1998, the complainant appealed to the Commission alleging that the DEP violated the Freedom of Information (FOI) Act by denying them access to the requested records. Citing the gravity of the decision imposed on her clients by the DEP deadline of July 17, 1998, as described in paragraph 2, above, the complainant requested, and received, an expedited hearing in this matter.
8. It is found that there is as of yet no written agreement which memorializes the funding commitment(s) described in paragraphs 2 and 3, above.
9. It is found that the requested records are public records within the meaning of §1-19(a), G.S.
10. Section 1-19(a), G.S., provides in relevant part:
[e]xcept as otherwise provided by any federal law or state statute, all records maintained by any public agency shall be public records and every person shall have the right to inspect such records promptly during regular office hours .
11. At the hearing in this matter, the DEP provided the complainant with three sets of notes of its employees, which are responsive to the request as described in paragraph 6, above. The DEP redacted from one such record information unrelated to the scope of the complainants request, as well as a portion of such record which it claimed was protected by the attorney-client privilege.
12. At the hearing in this matter, the parties stipulated that the DEP would more thoroughly search through its records for other records responsive to the request described in paragraph 6, above, and that copies of such records would be delivered to the complainant on July 16, 1998, unless an exemption was claimed for such records. The parties further stipulated that any such responsive records which were located and claimed as exempt would be delivered to the Commission for in-camera review on July 16, 1998.
13. On July 16, 1998, the DEP submitted records to the Commission for in- camera inspection, which records have been identified as in-camera document #s 1998- 180-1 - 1998-180-35, inclusive.
14. The DEP contends that §1-19(b)(10), G.S., exempts the following in-camera document #s, or portions thereof, from mandatory disclosure: 1998-180-5, 1998-180-34, and 1998-180-35.
15. 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 .
16. 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).
17. 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. DiLoreto, supra.
18. It is found that the redactions made to in-camera document #s 1998-180-5, 1998-180-34, and 1998-180-35 either relate to matters outside the scope of the complainants request, or reflect confidences of a client relayed to an attorney, or advice deriving therefrom.
19. It is therefore concluded that the redacted portions of the records described in paragraph 18, above, are privileged communications within the meaning of §1-19(b)(10), G.S., or, in the alternative, are outside the scope of the complainants request as they relate to matters other than the Millbrook Condominiums. Accordingly, it is concluded that the DEP did not violate §1-19(a), G.S., by failing to provide the complainant with access thereto.
20. The DEP contends that in-camera document #s 1998-180-11 through 1998- 180-20, or portions thereof, are preliminary notes or drafts, as such, exempt from mandatory disclosure by virtue of §1-19(b)(1), G.S.
21. Section 1-19(b)(1), G.S., in relevant part states:
[n]othing 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 .
22. Section 1-19(c), G.S., in relevant part states:
[n]otwithstanding the provisions of [§1-19(b)(1), G.S.] disclosure shall be required of 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 .
23. Upon inspection of in-camera document #s 1998-180-11 through 1998-180- 20, it is found that the redacted portions of such documents are preliminary notes or drafts within the meaning of §1-19(b)(1), G.S., and that they are not memoranda, letters, advisory opinions, recommendations or reports within the meaning of §1-19(c), G.S. It is further found that the DEP determined that the public interest in withholding such records outweighs the public interest in disclosure.
24. It is therefore concluded that the redacted portions of in-camera document #s 1998-180-11 through 1998-180-20, inclusive, are exempt from disclosure under the provisions of §1-19(b)(1), G.S.
25. It is concluded that the DEP did not violate §1-19(a), G.S., by failing to provide the complainant with prompt access to the redacted portions of in-camera document #s 1998-180-11 through 1998-180-20, inclusive.
26. It is found that, according to the index described in paragraph 13, above, copies of all in-camera document #s 1998-180-1 - 1998-180-35, inclusive, or portions thereof, which are within the scope of the complainants request, and which are not exempt from mandatory disclosure, have been provided to the complainant.
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.
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 regular meeting of August 12, 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:
Linda W. Alderman Alderman & Alderman One Corporate Center Hartford, CT 06103
State of Connecticut, Department of Environmental Protection c/o Atty. Judith A. Merrill Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120
__________________________ Doris V. Luetjen Acting Clerk of the Commission