FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Lawrence J. Merly,  
  Complainant  
  against   Docket #FIC 2008-647

Tax Assessor, City of Bridgeport;

and City of Bridgeport,

 
  Respondents July 8, 2009
       

 

The above-captioned matter was heard as a contested case on June 1, 2009, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.  By letter dated September 26, 2008 and filed on September 29, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by refusing to provide the complainant with the information described in paragraph 3, below.

 

3.  It is found that, by letter dated September 15, 2008, the complainant requested from the respondents the following information “relating to the change in assessment at Captain’s Cove:”

 

a.       “[A] copy of the certificate of correction;” and

b.       “[Any] opinion in writing.”

 

(Hereinafter “the requested records”).

 

            4.  It is found that, by letter dated September 18, 2008, the respondents replied to the complainant’s September 15, 2008 request described in paragraph 3, above, by stating that the complainant’s “letter did not include a written authorization from an officer of Captain’s Cove if it is incorporated, or from the owner, if it is not, indicating that the information should be provided” to the complainant.  The respondents also stated that they will “determine what documents [they] have that respond to [the complainant’s] request and what, if any, items are exempt from production pursuant to Section 12-41 et. seq. of the General Statutes of Connecticut.”  The respondents further offered to copy any non-exempt records responsive to the complainant’s request described in paragraph 3, above, or in the alternative, allow the complainant to make arrangements to inspect any non-exempt records.

 

            5.  It is found that, attached to a letter dated January 8, 2009, the complainant provided the respondents with a signed authorization from an officer or owner of the Captain’s Cove property.

 

6.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  Section 1-210(a), G.S., states 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…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.  It is found that, to the extent the respondents maintain the requested records, such records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.  It is found that the respondents provided the complainant with a copy of the record described in paragraph 3a., above.  Accordingly, such record is no longer at issue in this case.

 

11.  At the hearing on this matter, the complainant contended that the respondents failed to provide the requested record described in paragraph 3b., above.  The complainant described such record as an “opinion” letter about the Captain’s Cove property written by the former tax assessor of the respondent City.  The complainant also contended that such record exists and is needed to determine the validity of a change in assessment made by the respondents on the related Captain’s Cove property.  Such assessment does not raise an FOI issue; therefore, the validity of the assessment will not be addressed herein.

 

12.  The respondents contended that the requested record described in paragraph 3b., above, is not an opinion letter, but instead a privileged communication exempt from disclosure pursuant to 1-210(b)(10), G.S. 

 

13.  The complainant maintained that such privilege was waived by the respondents when respondents’ counsel agreed to provide the record described in paragraph 3b., above, prior to the hearing, but reneged on such promise shortly thereafter.

 

14.  At the close of the hearing in this case, the respondents submitted the records described in paragraph 3b., above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  Such in camera records shall be identified as IC-2008-647-1 through IC-2008-647-2.

 

15.  Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.”

 

16.  The applicability of the exemption contained in 1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, 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.

 

17.  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. . . .

 

18.  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.

 

19.  It is found that the former tax assessor of the respondent City requested confidential legal advice from a city attorney concerning the Captain’s Cove assessment.

 

20.  It is found that IC-2008-647-1 through IC-2008-647-2 constitute written communications between the respondents and the city attorney concerning the legal advice solicited by the respondents.

 

21.  After a careful review of the in camera records, it is found that the records are communications related to legal advice sought from a professional legal advisor, in the course of his or her duties, and were related to business under consideration by the respondents.  It is further found that the communications were made in confidence.  It is concluded, therefore, that the records in question constitute records of communications privileged by the attorney-client relationship.

 

22.  It is found that the respondents did not waive the privilege.

 

23.  It is concluded that the FOI Act exempts the records described in paragraph 3b., above, from mandatory disclosure, pursuant to 1-210(b)(10), G.S.

 

24.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by 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.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 8, 2009.

 

 

____________________________

S. Wilson

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:

 

Lawrence J. Merly  

Law Offices of Lawrence J. Merly

76 Lyon Terrace

Bridgeport, CT 06604

 

Tax Assessor, City of Bridgeport;

and City of Bridgeport

C/o Melanie J. Howlett, Esq.

Office of the City Attorney

999 Broad Street

Bridgeport, CT 06604

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-647FD/sw/7/13/2009