FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 1998-345|
|Katherine Maxwell, Controller, Town of
Windham; and Town of Windham,
|Respondents||April 28, 1999|
The above-captioned matter was heard as a contested case on January 13, 1999, 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 § 1-200(1), G.S. [formerly § 1-18a(1), G.S.]
2. By letter dated October 9, 1998, the complainant requested that the respondents provide him with access to "all legal bills, receipts, itemized statements and similar instruments since 1994."
3. It is found that, with respect to this matter, the respondent town had three attorneys: the town labor attorney, the town attorney, and the town counsel.
4. By letter dated October 19, 1998, the respondents provided access to the invoices of the town labor attorney and the town attorney, but denied access to legal invoices from the town counsel claiming that such invoices related to pending litigation.
5. By letter dated November 4, 1998, and filed with the Commission on November 6, 1998, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him access to requested records related to the town counsel. The complainant requested imposition of civil penalties.
6. It is found that certain town counsel bills, or portions thereof, were subsequently made available to the complainant at the respondents offices, while other town counsel bills have been withheld. It is further found that such withheld bills (hereinafter "counsel bills") are the subject of the complaint in this matter.
7. It is found that the counsel bills are public records within the meaning of § 1-210(a), G.S. [formerly § 1-19(a), G.S.]
8. Section 1-210(a), G.S., provides in
[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 .
9. The respondents first contend that § 1-210(b)(10), G.S. [formerly § 1-19(b)(10), G.S.] provides a basis to withhold the counsel bills.
10. Section 1-210(b)(10), G.S., in relevant part, permits the nondisclosure of " communications privileged by the attorney-client relationship."
11. The exemption for attorney-client privileged communications contained in § 1-210(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.
13. It is concluded that the respondents failed to prove that the invoices contain confidential communications within the meaning of the attorney-client privilege exemption set forth in § 1-210(b)(10), G.S.
14. Consequently, it is further concluded that the counsel bills are not exempt from mandatory disclosure by virtue of § 1-210(b)(10), G.S.
15. The respondents next contend that the attorney work product rule exempts the counsel bills from mandatory disclosure.
16. However, it is concluded that the attorney work product rule does not constitute an exemption under the FOI Act and that therefore such rule does not provide a basis to withhold the counsel bills.
17. Finally, the respondents contend that § 1-210(b)(4), G.S., [formerly § 1-19(b)(4), G.S.], exempts the counsel bills from mandatory disclosure.
18. Section 1-210(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. . . ."
19. It is found that, at all times relevant to this matter, the respondent town was a party with respect to pending claims and pending litigation within the meaning of § 1-210(b)(4), G.S., and that the counsel bills were generated as a result of such claims and litigation.
20. However, it is concluded that the respondents failed to prove that the counsel bills pertain to strategy and negotiations with respect to pending claims or pending litigation within the meaning of § 1-210(b)(4), G.S.
21. It is therefore concluded that the counsel bills are not exempt from mandatory disclosure by virtue of § 1-210(b)(4), G.S.
22. Based upon the foregoing, it is
concluded that the respondents violated § 1-210(a), G.S.,
by failing to provide the complainant with access to the counsel bills.
23. The Commission declines to impose a civil penalty 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 complainant with access to the counsel bills, more fully described in paragraph 6 of the findings, above.
2. Henceforth, the respondents shall strictly comply with the provisions of § 1-210(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:
Windham Center, CT 06280
Controller, Town of
Windham; and Town
c/o Atty. Richard S. Cody
and Atty. Ana Navarro
21 East Main Street
PO Box 425
Mystic, CT 06355
Melanie R. Balfour
Acting Clerk of the Commission