FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
John E. Clark and
Calico Sports Productions Television,
Complainants
against Docket #FIC 1998-250
Domenique S. Thornton, Mayor,
City of Middletown; and City of Middletown,
Respondents April 28, 1999

        The above-captioned matter was heard as a contested case on November 12, 1998, at which time the complainants 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 1-200(1), G.S. [formerly 1-18a(1), G.S.].

        2. By letter dated August 3, 1998, the complainants made a request to the respondent mayor for copies of "the agreement reached between the City of Middletown and SNET regarding charges and credits for telephone billing as well as any correspondence, memoranda, notes and all other writings concerning the investigation, negotiations and agreements, including any analysis, reports or itemizations of overcharges, between the City of Middletown and SNET regarding the same issue including, but not limited to, those maintained by Debra Moore, James Milardo and the Office of the City Attorney (hereinafter "August letter")."

        3. By letter dated August 6, 1998, the respondent provided the complainants with a copy of the agreement reached between the city and SNET and informed the complainants that the remaining documents requested were exempt from disclosure because they were attorney work product and/or privileged communications between attorney and client.

        4. By letter dated August 18, 1998, and filed with the Commission on August 19, 1998, the complainants appealed the respondents’ denial of the requested documents and requested the imposition of civil penalties.

        5. Section 1-210(a), G.S. [formerly 1-19(a), G.S.], provides in relevant part that:

[e]xcept 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 receive a copy of such records in accordance with the provisions of section 1-212.

        6. Section 1-212(a), G.S. [formerly 1-15(a), G.S.], provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the Freedom of Information Act . . . shall not exceed fifty cents a page.

        7. It is found that the requested records more fully described in paragraph 2, above, are public records within the meaning of 1-210(a), G.S. [formerly 1-19(a), G.S.].

        8. At the hearing in this matter, complainant Clark testified that on or about November 5, 1998, the respondents provided most of the remaining documents requested in the August letter; however, he maintained that the respondents failed to produce copies of telephone bills and argued that although the respondents provided a substantial amount of records, they did not do so promptly, as required by statute.

        9. At the hearing in this matter, the respondents maintained that they have provided the complainants with all non-exempt records responsive to the August letter and that such letter did not include a request for copies of telephone bills. The respondents further maintained that the delay in providing the records described in paragraph 8, above, was due to their initial misunderstanding of the complainants’ request, which request was clarified in the complainants’ letter of complaint to this Commission.

        10. It is found, however, that the respondents did not provide the records described in paragraph 8, above, to the complainants until after the respondents received a copy of the Commission’s Notice of Hearing and Order to Show Cause in this matter, approximately four months after the complainants made their request.

        11. It is also found that the description of the requested records in the complainants’ letter of complaint to this Commission does not substantially differ from the description contained in the August letter.

        12. It is further found that the respondents failed to promptly comply with the complainants’ request described in paragraph 2, above, and it is therefore concluded that the respondents violated 1-210(a) and 1-212(a), G.S. [formerly 1-19(a) and 1-15(a), G.S.].

        13. Notwithstanding the finding and conclusion in paragraph 12, above, it is found that the complainants did not specifically request copies of telephone bills, and that copies of the telephone bills do not reasonably fall within the ambit of the August letter. Accordingly, the issue of telephone bills is not properly before the Commission.

        14. The respondents submitted the subject records to the Commission for in-camera inspection, which records have been identified as in-camera document #s 1998-250-1 - 1998-250-48, inclusive.

        15. Upon careful review of the in-camera document #s described in paragraph 14, above, it is found that in-camera document # 1998-250-7 is identical to in-camera document # 1998-250-12. Accordingly, any exemption claimed for in-camera document # 1998-250-7 is deemed claimed for in-camera document # 1998-250-12. It is further found that in-camera document #s 1998-250-30 and 31 comprise one entire record; that in-camera document #s 1998-250-40 and 41 comprise one entire record; and that in-camera document #s 1998-250-44-48 comprise one entire record.

        16. It is found that, in the in-camera submission described in paragraph 14, above, the respondents did not contend that the following document #s are exempt: 1998-250-8-11 and 1998-250-13-26. Accordingly, it is concluded that the respondents violated 1-210(a), G.S. [formerly 1-19(a), G.S.], by failing to promptly provide the complainants with copies of such records.

        17. The respondents contend that 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.], exempts the following in-camera document #s from mandatory disclosure: 1998-250-1-6, 27-29, 32, 35, 37-38, and 40-48.

        18. Section 1-210(b)(1), G.S. [formerly 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….

        19. Section 1-210(c), G.S. [formerly 1-19(c), G.S.], in relevant part states:

[n]otwithstanding the provisions of [ 1-210(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….

        20. Upon inspection of in-camera documents described in paragraph 17, above, it is found that the following in-camera document #s are preliminary drafts or notes within the meaning of 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.]: 1998-250-1 (handwritten notes only); 1998-250-2 (handwritten notes only); 1998-250-3-6, 27-29, 32, 35, 37-38, and 40-48.

        21. It is also found that the documents described in paragraph 20, above, are not memoranda, letters, advisory opinions, recommendations or reports within the meaning of 1-210(c), G.S. [formerly 1-19(c), G.S.] It is further found that the respondents determined that the public interest in withholding such records outweighs the public interest in disclosure.

        22. It is therefore concluded that the documents described in paragraph 20, above, are exempt from disclosure under the provisions of 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.], and that the respondents did not violate 1-210(a), G.S. [formerly 1-19(a), G.S.], by failing to provide the complainants with copies of such documents.

        23. It is found that the typed portions of in-camera document #s 1998-250-1 and 2 are not preliminary drafts or notes within the meaning of 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.].

        24. It is therefore concluded that the documents described in paragraph 23, above, are not exempt from disclosure under the provisions of 1-210(b)(1), G.S. [formerly 1-19(b)(1), G.S.], and that the respondents violated 1-210(a), G.S. [formerly 1-19(a), G.S.], by failing to provide the complainant with copies of such documents upon request.

        25. The respondents contend that the following in-camera document #s are exempt by virtue of 1-210(b)(10), G.S. [formerly 1-19(b)(10), G.S.]: 1998-250-7, 12, 30, 31, 33, 34, 36, and 39.

        26. Section 1-210(b)(10), G.S. [formerly 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…."

        27. The exemption for attorney-client privileged communications contained in 1-210(b)(10), G.S. [formerly 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).

        28. 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.

        29. It is concluded that the in-camera document #s described in paragraph 25, above, are privileged communications within the meaning of 1-210(b)(10), G.S. [formerly 1-19(b)(10), G.S.] It is further concluded that such documents are exempt from disclosure by virtue of such provision and that the respondents did not violate 1-210(a), G.S. [formerly 1-19(a), G.S.], when they failed to provide the complainants with copies of such documents.

        30. The Commission, in its discretion, declines to impose civil penalties 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 respondents shall forthwith provide the complainants with access to the records described in paragraphs 16 and 23 of the findings, above.

        2. Henceforth, the respondents shall strictly comply with the provisions of 1-210(a), G.S. [formerly 1-19(a), G.S.].

 

         Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 1999.

 

_________________________

Melanie R. Balfour

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:

 

John E. Clark and Calico
Sports Productions Television
c/o Atty. Ralph E. Wilson
137 South Main Street
Middletown, CT 06457
Domenique S. Thornton,
Mayor, City of Middletown;
and City of Middletown
c/o Atty. Trina A. Solecki
City Attorney
245 deKiven Drive
PO Box 1300
Middletown, CT 06457
 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-250FD/mrb04301999