FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 23, 2007, at which time the complainant and the respondent appeared and presented argument and exhibits on the complaint.  The case caption has been amended to reflect the fact that the Commission dismissed the underlying complaint of Kelli Hibbard in case docket #FIC 2005-296. 

 

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.  By letter dated September 8, 2006, and filed on September 12, 2006, the complainants appealed to the Commission alleging that the respondent failed to comply with the Commission’s final decision and order in contested case docket #FIC 2005-296, Margaret Loris and Kelli Hibbard v. Board of Education, Norwalk Public Schools, (hereinafter “FIC 2005-296”) wherein, the Commission ordered the respondent to:

 

“…provide the complainant with a copy of the records described in paragraph 14 of the findings, above, that have not been provided to the complainant.”

 

3.  The Commission takes administrative notice of the record, case file and final decision in docket FIC 2005-296.

 

            4.  It is found that paragraph 14 of the findings in FIC 2005-296, states in pertinent part, that the complainants are seeking the following records responsive to their request for records:

 

“… correspondence including, but not limited to attendance records, material regarding various issues concerning students, evaluation documents, grievances, an “improvement plan” and complimentary letters from parents.” (hereinafter “the requested records”)

 

5.  The complainants contend that the respondent failed to timely comply with the May 10, 2006 order in docket FIC 2005-296, which directed that provision of access to the complainant should be “forthwith.”

 

6.  Having failed to receive the requested records, it is found that, by letter dated July 3, 2006, the complainants, through their attorney, Daniel Hunsberger, sought compliance with the Commission’s order.  The letter stated in pertinent part:

 

To date Ms. Loris and Ms. Hibbard have not received any documents from the Norwalk Board of Education or the Norwalk Public Schools in compliance with the final decision of the Freedom of Information Commission.  Please provide same through this office.

 

7.  It is found that upon receipt of the final decision regarding docket #FIC 2005-296, the respondent identified sources of the records within the school system.  The respondent then gathered, reviewed and copied approximately 1,148 records.  Records from all but one source were copied.  In this regard, by letter dated July 5, 2006, the respondent identified copies of various records that were prepared for the complainants and advised the complainants that upon receipt of copying fees in the amount of $508.00, the copies would be made available. 

 

            8.  It is also found that, by letter dated July 6, 2006, the complainants asked the respondent to:

 

(a)     notify the complainants of the page total and cost of reproducing a number of documents that were ready;

 

(b)    provide information concerning the disclosure of a certain investigation report; and

 

(c)     provide an inventory of documents for which the respondent was claiming an exemption from disclosure, and the basis for the claims.

 

            9.  It is further found that, by letter dated August 30, 2006, the respondent informed the complainants that copies of the additional records described in paragraph 7, above, would be made available after certain copying fees were paid.  These records were made available on August 30, 2006, and were obtained by the complainants in mid-September 2006.

 

10.  In a letter dated December 5, 2006, the respondent informed the complainants that in light of the respondent’s compliance with production of records relating to a pending civil matter, the respondent was no longer withholding a number of the requested records.  The letter further stated, however, that a number of the requested records were being withheld under the attorney-client privilege.

           

11.  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. ….  [Emphasis added].

 

12.  Section 1-212(a), G.S., provides: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

13.  At the hearing in this matter, the respondent maintained that the remaining requested records are exempt from disclosure pursuant to §1-210(b)(10), G.S., as attorney-client privileged communications, and §1-210(b)(4), G.S., as records of strategy and negotiations with respect to pending claims or pending litigation, and provided those records to the Commission for an in camera review, which records consist of 139 pages, which have been marked as IC 2006-466-1 through 139.  The complainants then informed the hearing officer that only the records not yet provided to them remain at issue in this appeal.  Consequently, the Commission will only address such records in this decision (hereinafter “in camera records”).

 

14.  It is concluded that the in camera records are public records within the meaning of §1-210(a), G.S.

15.  On the index to in camera documents, the respondent contends that in camera record IC 2006-466-137 is exempt from disclosure pursuant to §1-210(b)(1), G.S., as a “preliminary note” within the meaning of §1-210(b)(1), G.S.

16.  Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure...”

 

17.  In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).

 

18.  It is found that the respondent has determined that the public interest in withholding IC 2006-466-137 clearly outweighs the public interest in its disclosure, within the meaning of §1-210(b)(1), G.S.

 

19.  Upon careful review of the in camera document IC 2006-466-137, above, it is found that such document is a preliminary note within the meaning of §1-210(b)(1), G.S., and is therefore exempt from mandatory disclosure.

20.  Therefore, it is concluded that the respondent did not violate the FOI Act by declining to provide a copy of such record to the complainant.

21.  The respondent contends that in camera records IC 2006-466-1 through 136, and IC 2006-466-138 through 139 are exempt from disclosure pursuant to §1-210(b)(10), G.S.

22.  Section §1-210(b)(10), G.S., in relevant part permits the nondisclosure of “…communications privileged by the attorney-client relationship.”

23.  With respect to the §1-210(b)(10), G.S., claim of exemption, the applicability of such exemption 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.

 

24.  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. . . .[Emphasis added.]

 

25.  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.

 

26.  Upon careful review of the in camera records described in paragraph 21, above, it is found that in camera records IC 2006-466-34, 60 through 65, 67 through 68, 71 through 72, 81 through 82, 86 through 89, 91, 93 through 94, 108 through 110, 113, 115, 116, 118 through 128, 130 through 136 and 138 are confidential communications between attorney and client relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney within the meaning of §52-146r(2), G.S., and are therefore exempt under §1-210(b)(10), G.S.

27.  It is concluded, therefore, that the respondent did not violate the FOI Act when it declined to provide the complainant with copies of the records described in paragraph 26, above.

28.  Upon review of in camera records described in paragraph 21, above, it is found that the respondent failed to prove that the following records constitute confidential communications privileged by the attorney-client relationship, within the meaning of §1-210(b)(10), G.S.: IC 2006-466-1 through 33, 66, 69 through 70, 73 through 80, 83 through 85, 90, 92, 95 through 107, 111 through 112, 114, 117 and 129.

29.  The respondent also contends that IC 2006-466-35 through IC 2006-466-67 and IC 2006-466-88 are exempt pursuant to §1-210(b)(4), G.S.

30.  Section 1-210(b)(4), G.S., provides in relevant part that nothing in the FOI Act shall require the 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 . . . .

 

31.  Section 1-200(9), G. S., defines “Pending litigation” to mean “(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.”

32.  With respect to the respondent’s claim that the records described in paragraph 29, above, are exempt from disclosure pursuant to §1-210(b)(4), G.S., it is found that, at the time of the complainants’ request and the hearing on this matter, the respondent was a party to a lawsuit, Civil Action No. 3:04-CV-01036 WWE (U.S. district Court), and that such lawsuit constitutes “pending litigation” within the meaning of §1-210(b)(4), G.S.

33.  It is further found that upon careful review of in camera records IC 2006-466-35 through 67, and IC 2006-466-88, it is concluded that the respondent failed to prove that such records are exempt from disclosure pursuant to §1-210(b)(4), G.S., as records of strategy and negotiations with respect to pending claims or pending litigation.

34.  It is concluded that the respondent violated the FOI Act when it failed to provide the complainant with a copy of the records described in paragraphs 28 and 29, above.

 

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 in camera records at no charge.

 

            2.  In complying with paragraph 1 of the order, the respondent may withhold the records described in paragraphs 19 and 26 of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 11, 2007.

 

________________________________

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:

 

Margaret Loris

c/o Daniel P. Hunsberger, Esq.

Maurer & Associates, PC

871 Ethan Allen Highway, Suite 202

Ridgefield, CT 06877

 

Board of Education, Norwalk

Public Schools

c/o Roseann G. Padula, Esq.

Sullivan, Schoen, Campane & Connon

24 Stony Hill Road, Suite 106

Bethel, CT 06801-1166

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-466FD/paj/7/17/2007