OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 2002-052|
Finance Director, Town of Stratford;
and Town Attorney, Town of Stratford,
|Respondents||September 11, 2002|
The above-captioned matter was heard as a contested case on May 20 and 28, 2002, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. The parties were requested to file simultaneous briefs, and both parties submitted briefs on July 2, 2002.
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.
2. By email letter dated December 12, 2001, the complainant requested that the Town Clerk of the Town of Stratford provide her with copies of:
“[a]ll financial records showing all payments to the Town Attorneys, their respective firms and their agents, with regard to all pending and concluded cases for a period from January 1, 1999 through today. I do not want the names of the private parties involved, only the official person or agency involved and a breakdown of the hours billed, hourly rate, any retainers paid and any case associated fees.” (emphasis in original)
The Town Clerk referred the matter to the respondent Finance Director who, in turn, sought legal counsel from the respondent Town Attorney.
3. By letter dated January 30, 2002, and filed with the Freedom of Information Commission (“FOIC”) on February 4, 2002, the complainant appealed to the FOIC alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to provide “the requested documents”.
4. Following a series of written communications involving pre-payments for copies of records and the need for review to make redactions permitted by statute, the respondents on March 15, 2002 provided the complainant with 2,721 pages of copies of invoices from the law firms of town attorneys, which invoices were redacted, as subsequently itemized in Respondents In Camera Inspection Index, dated May 31, 2002 (131 pages). On or about June 7, 2002, the respondents provided the complainant with 26 additional pages of copies of invoices from the law firms of town attorneys, also bearing redactions, which respondents stated “were inadvertently not included in its original response to the [c]omplainant”. The 2,721 pages, plus the 26 pages, of invoices are together hereinafter referred to as “the records provided” or sometimes the “records”.
5. At the hearings on May 20 and 28, 2002, the complainant contended that the respondents violated the FOIA: a) by failing to provide the records promptly; b) by redacting the copies of invoices provided on March 15, 2002; and c) by failing to provide copies of time records for legal work on Town of Stratford matters performed by Attorney Richard J. Buturla, an Assistant Town Counsel, working at the law firm of Berchem, Moses and Devlin (the “time records”).
6. Based upon an order of the hearing officer, the respondents submitted the records provided for an in camera review, which has now been performed in order to evaluate the redactions described in paragraph 4 and disputed as set forth at paragraph 5b). The 131 page binder which accompanied the Respondents In Camera Inspection Index, dated May 31, 2002, includes, as required, a statement of the statutory exemption claimed for each redaction, and is the most thorough such index for a substantial volume of records ever reviewed by the undersigned as a hearing officer.
7. At the hearings and in their brief, the respondents also contended inter alia that: a) despite exercising the statutory authorization to require pre-payment for copies, C.G.S. §1-212(c), they provided the records promptly; b) the time records of a private law firm are not public records and therefore are beyond the scope of the FOIA; and alternatively, c) that the time records are exempt from disclosure as preliminary drafts and notes, and also as communications privileged by the attorney-client relationship.
8. It is found that the interval of time between January 28, 2002, when the complainant made a $1,191 deposit for copies of records, until March 1, 2002, when the respondent town attorney informed complainant that she could pick up copies of the requested records, was not unreasonable, given the magnitude of the task of reviewing 2,721 pages for information that is exempt from mandatory disclosure and subject to redaction.
9. It is also found, based upon the in camera inspection, that, the redactions to the records provided (described in paragraph 4 and disputed as set forth at paragraph 5b)) were based upon at least one of the exemptions from mandatory disclosure claimed by the respondents. The respondent town counsel and/or his staff faithfully adhered to the principles set forth by the Appellate Court in New Haven v. FOIC, 4 Conn. App. 216 (1985), and did not resort to highly aggressive, overbroad claims of exemption from FOIA disclosure.
10. It is further found that, given the decentralized structure of the Town Attorneys’ operations, neither the town clerk, nor the respondent Finance Director, or the respondent Town Attorney has in their custody and control the time records of Assistant Town Counsel Richard J. Buturla. The respondent Town Attorney could ask his subordinate, Assistant Town Counsel Richard J. Buturla, for his time records, but nothing in the FOIA requires him to do so.
11. It is further found that Attorney Richard J. Buturla was appointed an Assistant Town Counsel in Stratford. However, the complainant did not make any request, prior to filing the complaint, of Mr. Buturla for his time records, which are stored on the hard drive of his law firm.
12. It is concluded that the respondents did provide the requested records promptly, as required by C.G.S. §1-210(a).
13. It is further concluded that the redacted information on the requested records was exempt from mandatory disclosure pursuant to C.G.S. §1-210(b) and that the respondents did not violate §1-210(a), G.S., by failing to provide redacted information to the complainant.
14. It is finally concluded that the subpoena of Mr. Buturla and his records, during the course of this proceeding, for evidence relating to the original request cannot, in the manner of a “rolling request”, substitute for the original request, which is the subject of and frames this adjudication. While the requests of laypersons for records need not be entirely precise, such requests must be made to a public agency having custody and control of the records sought. The obligations and rights of Attorney Richard J. Buturla, and the law firm Berchem, Moses and Devlin, should not be adjudicated without notice to him as a public official who is a party in a contested case. See generally Chairman, Board of Education of the Town of Darien v. FOIC, 60 Conn. App. 584 (2000). Therefore, the respondents did not violate §1-210(a), G.S., by failing to provide copies of the time records 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. Though this matter did not include adjudication of any request to and denial by Attorney Buturla for his time records, Assistant Town Counsel Richard J. Buturla, would seem, following Londregan v. FOIC, CV 526105 & 529345, New London Superior Court, July 13, 1994, to be a public agency, and his time records concerning town matters would seem to be public records, as defined by C.G.S. §1-200(5). Moreover, while the claim of preliminary drafts and notes is also not adjudicated herein, the disclosure of the number of hours billed by attorneys has been expressly approved by the Appellate Court in New Haven v. FOIC, op. cit..
Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 2002.
Petrea A. Jones
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:
c/o Thomas C. Thornberry, Esq.
3000 Main Street
Stratford, CT 06614
Finance Director, Town of
Stratford; and Town Attorney,
Town of Stratford
c/o Kevin C. Kelly, Esq.
Town Attorney's Office
2725 Main Street
Stratford, CT 06615 and
Zeldes Needle & Cooper PC
1000 Lafayette Boulevard, PO Box 1740
Bridgeport, CT 06601-1740
Petrea A. Jones
Acting Clerk of the Commission