OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
Linda J. Kleinschmidt and
Police on Patrol Days, Inc.,
|City Manager, City of Meriden,|
|Respondent||October 11, 2005|
The above-captioned matter was heard as a contested case on May 5, 2005, at which time the complainants and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.
2. It is found that, prior to the request described in paragraph 3, below, the city of Meriden hired the private investigation firm of Adams Barrett & Associates [hereinafter “Adams”] to conduct an investigation of its police chief [hereinafter “the investigation].
3. It is found that, by letter dated October 13, 2004, the complainants requested that the respondent provide them with copies of “all documentation of meetings, minutes, records, files, all field notes, phone records, records using electronic devices, including but not limited to e-mails, PDAs, cell phones, computer recorded information, calendars, any and all responses and copies of records in your or others [sic] possession concerning when…[Adams] was hired, who hired them and how much it is costing the taxpayers of Meriden for this investigation [hereinafter the ‘requested records’].”
4. By letter dated October 25, 2004, and filed with the Commission on October 27, 2004, the complainants alleged that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by not replying to the request described in paragraph 3, above, and denying her copies of the requested records.
5. At the hearing in this matter and on brief, the respondent contended that the complaint is limited to an allegation that the respondent failed to reply to the request by the date of the filing of the complaint. However, it is concluded that the complaint fairly alleges that the respondent violated the FOI Act by failing to promptly provide the complainants with copies of the requested records.
6. 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…receive a copy of such records in accordance with section 1-212….
7. Section 1-212(a), G.S., provides in relevant part: “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
8. It is found that the respondent maintains the requested records and that such records are public records within the meaning of §1-210(a), G.S.
9. It is found that, under cover letter dated October 27, 2004, the respondent provided the complainants with copies of the requested records, which included a copy of an October 13, 2004, letter to the city’s corporation counsel, from Pepe & Hazard, counsel to the city of Meriden [hereinafter “counsel’]; a copy of an October 14, 2004 letter to Adams from counsel, with certain redactions; and a purchase requisition form.
10. It is found that, by letter dated October 29, 2004, to the respondent, the complainants acknowledged receipt of the records described in paragraph 9, above, but stated that such records did not comprise all requested records. It is further found that the complainants did not object at such time to the redactions described in paragraph 9, above, but instead asked for specific information, including the date Adams was hired, the date Adams started the investigation, a copy of the contract which spells out the hourly rate for Adams, the time frame given to complete the investigation, and the number of hours which Adams had billed.
11. By letter dated November 1, 2004, the respondent replied to the letter described in paragraph 10 above, and informed the complainants that he is not required to answer questions under the FOI Act.
12. It is found that the respondent provided the complainants with all requested records that he kept on file, excepting those portions which were redacted as described in paragraph 9, above, on October 27, 2004. It is further found that such provision was not prompt within the meaning of §§1-210(a), and 1-212(a), G.S. Accordingly, it is concluded that the respondent technically violated the promptness provisions §§1-210(a), and 1-212(a), G.S.
13. With respect to the redactions described in paragraph 9, above, the Commission takes administrative notice of the record in Docket #FIC 2004-517;
14. It is concluded that the October 14, 2004 letter is a public record within the meaning of §1-210(a), G.S.
15. At the hearing in this matter, the respondent contended that the redactions were permissible, since the attorney-client privilege applied to the redacted portions.
16. With respect to the claim of exemption pursuant to §1-210(b)(10), G.S., such provision permits the nondisclosure of “communications privileged by the attorney-client relationship….”
17. 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.
18. 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. . . .
19. 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.
20. It is found that the portions of the October 14, 2004 letter that the respondent redacted constituted confidential communications transmitted within the context of the attorney-client relationship, and for the purpose of rendering legal advice.
21. It is therefore concluded that the portions of the October 14, 2004 letter that the respondent redacted constituted privileged attorney-client communications, within the meaning of §1-210(b)(10), G.S., and were permissively exempt from disclosure.
22. It is further concluded that the respondent did not violate the FOI Act when he denied the complainant a copy of the redacted portions of the October 14, 2004 letter.
Based on the record concerning the above-captioned complaint, no order by the Commission is hereby recommended.
Approved by Order of the Freedom of Information Commission at its special meeting of October 11, 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:
Linda J. Kleinschmidt and
Police on Patrol Days, Inc.
PO Box 122
Hartford, CT 06141-0122
City of Meriden
c/o Kenneth S. Weinstock, Esq.
Kainen, Escalera & McHale, PC
21 Oak Street, Suite 601
Hartford, CT 06106
Petrea A. Jones
Acting Clerk of the Commission