FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Rick LeMay,  
  Complainant  
  against    Docket #FIC 2004-191
First Selectman, Town of Portland,  
  Respondent  January 12, 2005
       

 

The above-captioned matter was heard as a contested case on July 29, 2004, at which time the complainant and the respondent appeared 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 1-200(1), G.S.

 

2.  It is found that on or about April 12, 2004, the complainant by e-mail, requested that the respondent provide him with a copy of a report concerning the independent counsel investigation into the alleged altering of the Portland Police Union pension and labor contract (hereinafter “requested record” or “report”). 

 

 3.  It is found that by e-mail dated April 12, 2004, the respondent acknowledged receipt of the request, and informed the complainant that her office was researching the requested information and would advise the complainant of its status as soon as possible.  Then, by e-mail dated April 16, 2004, the respondent denied the complainant a copy of the requested record and informed the complainant that such record may be exempt from disclosure under the Freedom of Information Act (hereinafter “FOI”) Act, including the exemption for communications privileged by the attorney-client relationship. 

 

4.  Having failed to receive a copy of the requested record, the complainant, by e-mail dated April 16, 2004, and filed April 19, 2004, appealed to the Commission, alleging that the respondent violated the FOI Act by denying him a copy of the requested record.  

 

5.  Section 1-210(a), G.S., provides, in relevant part:

 

Except 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 … (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

6.  It is found that the requested record is a twenty two-page report plus attachments and exhibits, prepared by special legal counsel, at the request of the Portland Board of Selectmen (hereinafter “board”).  It is found that the board requested that such special counsel investigate and report his findings and recommendations regarding certain alleged improprieties in connection with collective bargaining and pension agreements.

 

7.  It is found that the report at issue is maintained by the respondent and such record is a public record within the meaning of 1-210(a), G.S. 

8.  Following the close of the hearing in this matter, the respondent submitted a copy of the report to the Commission for an in camera review.[1]  The in camera record has been marked for identification purposes as IC 2004-191-1 through 22, inclusive.

9.  The respondent contends that the report is exempt from disclosure pursuant to 1-210(b)(10), G.S.

10.  Section 1-210(b), G.S., provides, in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

(10)  … communications privileged by the attorney-client relationship.

11.  With respect to the respondent’s claim that the requested record is an exempt attorney-client privileged communication, the applicability of the exemption contained in 1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  That 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.

12.  Section 52-146r(2), 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. . . .

13.  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.

14.  The complainant contends that the respondent cannot claim attorney-client privilege with respect to the report because any privilege belongs only to the people of the town of Portland (“town”) who are the “clients”, and will ultimately foot the bill to pay for such report.

15.  It is found however, that it is the board, (the duly elected governing body of the town), that is the authority empowered pursuant to the town’s Charter to hire special counsel.

 

16.  It is found that the board hired special counsel who conducted an investigation and issued the report, now at issue, to the board.

 

17.  It is therefore, concluded that the privilege, to the extent one exists, belongs to the board.  

18.  Upon completion of the in camera review, it is found that the report consists of opinion and advice provided by special counsel to the board, given in the context of counsel’s professional relationship as legal advisor, and in response to a request by the board for such opinion.  

19.  It is therefore, found that in camera record 2004-191-1 through 22, inclusive, constitutes a communication privileged by the attorney-client relationship, within the meaning of 1-210(b)(10), G.S.

20.  It is also found that the report was provided to the Office of the State’s Attorney for review, and on January 14, 2004 the State’s Attorney issued a two-page letter containing the result of his review.  The State’s Attorney’s letter was made public.

21.  In Ullmann v. State, 230 Conn. 698, 711 (1994), the Supreme Court held that the privilege is waived when statements of the communications are made to third parties.  Also, in State v. Taft, 258 Conn. 412, 421, 781 A.2d 302 (2001) the Supreme Court stated that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege.  See also, State v. Turner, 252 Conn. 714, 733, 751 A.2d 372 (2000).

22.  In Ullmann supra, the Court further stated that a communication between a defendant’s attorney and a state’s attorney concerning a plea agreement does not fall within the scope of the attorney-client privilege.  Ullmann at 711 citing State v. Burak, 201 Conn. 517, 526, 518 A.2d 639 (1986).  Such information, the Court concluded “failed to qualify for the attorney-client privilege because it involved statements made to a third party, with no attendant expectation of confidentiality.”  Further, “[a] client may waive a privilege by voluntary disclosure to a third party; the disclosure breaches the confidentiality of the attorney-client relationship and, therefore, waives the privilege.”  Tucci v. Norwalk Hospital, 2002 Conn. Super. Ct. Feb. 22, 2002, (CV970161081S, Judicial District of Stamford-Norwalk at Stamford, Robinson, J.)

23.  In In re Von Bulow, 828 F.2d 94, 101 (2d Cir. 1987), the court stated that “[i]t is the client’s responsibility to insure continued confidentiality of his communications.”  “The power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority.  C. McCormick, Evidence (4th Ed. 1992) 93; see also Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931) (communications relevant to legal advice privileged until client waives protection)…[O]nce the confidence protected has been breached, the privilege has no valid ‘continuing office to perform.’”  In re Von Bulow, supra, Gebbie v. Cadle Co., 49 Conn. App. 265, 274 (1998).

24.  It is found that the voluntary disclosure of the contents of the report to the state’s attorney office constituted a waiver of the privilege.

25.  It is therefore, concluded that the report is not exempt from public disclosure pursuant to 1-210(b)(10), G.S., because the privilege was waived and no longer in effect.

26.  It is further concluded that the respondent violated 1-210(a) and 1-212(a), G.S., when she failed to provide the complainant with a copy of the report. 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  Forthwith, the respondent shall provide the complainant with a copy of the report.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 12, 2005.

 

________________________________

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:

 

Rick LeMay

70 Brighton Road

Old Lyme, CT 06371-1901

 

First Selectman, Town of Portland

c/o Jean M. D’Aquila, Esq.

Howard, McMillan & D’Aquila

547 Main Street

Suite 103

Middletown, CT 06457

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-191FD/paj/1/18/2005

 

                                                                                               



[1] No attachments or exhibits were submitted.