OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|Daniel M. McCabe,|
|against||Docket# FIC 2004-134|
Zoning Enforcement Officer, Land
Use Bureau, City of Stamford,
|Respondent||September 22, 2004|
The above-captioned matter was heard as a contested case on July 6, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Evidence submitted after the hearing in this matter shall not be considered herein.
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 §1-200(1), G.S.
2. It is found that, on October 7, 2003, the Stamford Land Use Bureau requested that the Stamford Law Department provide it with an opinion in the form of a “confidential memo” regarding a pending zoning permit of Stop and Shop Supermarket [hereinafter “the opinion letter”].
3. It is found that, on November 10, 2003, Attorney John Mullin of the Stamford Law Department provided the respondent with the opinion letter.
4. It is found that, by letters dated January 21, 2004, and March 1, 2004, the complainant requested that the respondent provide him with a copy of the opinion letter.
5. It is found that, on or about March 3, 2004, the respondent orally denied the requests described in paragraph 4, above, and that such denial was reduced to writing on March 11, 2004, in a letter to the complainant.
6. By letter dated and filed with the Commission on March 22, 2004, the complainant alleged that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by denying him a copy of the opinion letter.
7. Section 1-210(a), G.S., provides, in relevant part:
[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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
8. Section 1-212(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.”
9. The respondent submitted a copy of the opinion letter to the Commission for in-camera inspection. Such document is hereby identified as in camera record # IC-2004-134-1.
10. It is found that in camera record # IC-2004-134-1 is a public record, within the meaning of §1-210(a), G.S.
11. The respondent contends that the opinion letter is exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.
12. In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”
13. Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S. Such law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002). In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.
14. Section 52-146r(2), G.S., defines “confidential communications” as:
“all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .”
15. The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.” Maxwell, supra at 149.
16. The complainant contends that the attorney-client privilege is expressly limited by §1-210(e)(1), G.S., and that §1-231(b), G.S., provides support for the proposition that the attorney-client privilege in the government context does not simply mirror the same privilege in the private context.
17. Section 1-210(e)(1), G.S. provides in relevant part that:
“notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, 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, 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.”
18. Section 1-231(b), G.S., provides in relevant part that: “[a]n executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200.”
19. It is concluded, however, that by its express terms, §1-210(e)(1), G.S., does not limit the attorney-client privilege, as the complainant contends. Rather, such provision only modifies the exemptions set forth in §§1-210(b)(1) and 1-210(b)(16), G.S.
20. It is also concluded that §1-231(b), G.S., limits the attorney-client privilege insofar as it applies to oral communications between public agencies and their attorneys. However, such provision does not limit the ability of a public agency to invoke an attorney-client privilege with its attorney insofar as written communications are concerned.
21. The complainant also contends that there is no need for an opinion letter related to a zoning application to be secret, that such letters are routinely made public by other municipalities and by the city of Stamford, that there is no pending claim or litigation regarding such letter which would warrant its confidentiality, and that good public policy calls for the release of the opinion letter so that the public can be assured of uniformity and fairness in application of local zoning laws.
22. However, it is concluded that the need for secrecy is not an element in an attorney-client privilege analysis, that the public availability of other attorney-authored opinion letters is not relevant, that there is no requirement in the FOI Act for there to be a pending claim or pending litigation for the attorney-client privilege to apply, and that public policy considerations, while important, cannot override the express language of the legislature if such language applies.
23. Based upon the evidence presented at the hearing, it is found that in camera record # IC-2004-134-1 is a record prepared by a government attorney that is confidential, made in the course of the professional relationship that exists between the government attorney and his public agency client, and that it relates to legal advice sought by the agency.
24. It is concluded that in camera record # IC-2004-134-1 constitutes a communication privileged by the attorney-client relationship within the meaning of §§1-210(b)(10) and 52-146r(2), G.S.
25. It is concluded therefore that the respondent did not violate §§1-210(a) and 1-212(a), G.S., by denying the complainant a copy of the opinion letter.
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.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 2004.
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:
Daniel M. McCabe
McCabe & Petrucci, LLC
1200 Summer Street
Stamford, CT 06905
Zoning Enforcement Officer, Land
Use Bureau, City of Stamford
c/o Michael Toma, Esq.
Assistant Corporation Counsel
888 Washington Boulevard
Stamford, CT 06904-2152
Petrea A. Jones
Acting Clerk of the Commission