FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Steven Anderson,  
  Complainant  
  against   Docket #FIC 2009-166

Superintendent of Schools, Derby Public

Schools; and Board of Education, Derby

Public Schools,

 
  Respondents

March 10, 2010

       

 

The above-captioned matter was heard as contested case on September 10 and October 22, 2009. At the September 10, 2009 hearing, the complainant and the respondents both appeared and presented testimony, exhibits and argument on the complaint. At the October 22, 2009 hearing, the respondents appeared and the complainant sent a facsimile dated October 22, 2009 stating: “[p]rovided the Derby Board of Education submits a letter that they have diligently searched and have no additional documents, we will not proceed with today’s hearing.”

 

By letter dated March 13, 2009, the original records request asked for eight categories of records, with some of the categories including subparts. By letter dated March 26, 2009, the respondent Superintendent responded concerning each of the eight categories and provided forty-nine pages of responsive records. Following testimony by the respondents at the September 10, 2009 and October 22, 2009 hearings, the respondents have by letters dated October 23, 2009 and November 13, 2009 stated in detail that they do not have “additional documents” within the scope of the request, except for a copy of one check concerning a previously disclosed transaction. A copy of this check was provided to the complainant with the respondents’ October 23, 2009 letter. With the exception discussed in the next paragraph, it is concluded that the respondent Board has met the terms of the complainant’s October 22, 2009 facsimile, which stated conditions which would cause the complainant not to proceed in this contested case.

 

At the September 10, 2009 and October 22, 2009 hearings, there was also representation by counsel for the respondents that counsel maintained one additional record within the scope of the complainant’s request, specifically “the original report submitted to Ron Melnick in 2006 by Special Investigations, Inc.” The respondents claim this report is exempt from mandatory disclosure as an attorney-client privileged document, pursuant to 1-210(b)(10), G.S. At the request of the hearing officer, the respondents submitted this investigation report on November 13, 2009 for an in camera inspection. This entire report, with a table of contents, but with unnumbered pages (“the investigation report”), is the only record within the scope of the complainant’s request that remains at issue in this contested case. It should also be noted that the current respondent Superintendent was not Superintendent at the time of the alleged malfeasance that is the subject of the investigation report.

 

After consideration of the entire record, the following facts are found and additional conclusions of law are reached:

 

1.  The respondents are public agencies within the meaning of 1-200(1)(A), G.S.

 

2.  By letter dated March 23, 2009 and filed with the Commission on March 26, 2009, the complainant appealed to the Commission, alleging that the respondents’ failure to provide requested records violated the Freedom of Information Act.

 

3.  Section 1-200(5), G.S., states:

 

“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.

 

4.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (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. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

            5.  It is found that the respondent Board of Education (“respondent Board”) is represented by the law firm of Siegel, O’Connor, O’Donnell & Beck, P.C., and sought legal advice from its attorneys regarding allegations of malfeasance within the Derby public schools.  

 

6.  It is found that Siegel, O’Connor, O’Donnell & Beck, P.C., determined that a fact-finding investigation was necessary in order to give sound and informed legal advice and arranged for their law firm to retain the services of Special Investigations, Inc. to conduct the investigation. Special Investigations, Inc. worked for and was paid by Siegel, O’Connor, O’Donnell & Beck, P.C. 

 

7.  It is found that at the conclusion of its inquiry in October 2006, Special Investigations, Inc. reported its findings in an investigation report which it submitted to Siegel, O’Connor, O’Donnell & Beck, P.C. Indeed, the sole purpose of the relationship between Special Investigations, Inc. and Siegel, O’Connor, O’Donnell & Beck, P.C., was to provide the respondent Board with legal advice.

 

            8.  It is found that the report, prepared by Special Investigations, Inc., was used exclusively by Siegel, O’Connor, O’Donnell & Beck, P.C., to formulate the legal advice that the respondent board originally sought and that Siegel, O’Connor, O’Donnell & Beck, P.C., provided to the respondent Board.

 

            9.  At the hearing, the respondents agreed to submit the investigation report for an in camera inspection. Based upon an in camera review, it is found that the investigation report provides the factual basis for, and was necessary to give, the legal advice sought by the respondent Board concerning alleged malfeasance within the Derby public schools.

 

            10.  It is also found that the respondents never maintained a copy or any summary of the investigation report. Moreover, the investigation report was maintained in confidence by Siegel, O’Connor, O’Donnell & Beck, P.C., and its client, the respondent Board.

 

11.  It is concluded that, because Siegel, O’Connor, O’Donnell & Beck, P.C. is counsel to the respondent Board, the investigation report is a “public record[s]” within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S. Londregan v. Freedom of Information Commission, Nos. 52 61 05 and 52 93 45, Superior Court, New London Judicial District, July 13, 1994.

 

            12.  In relevant part, 1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….” The exemption contained in 1-210(b)(10), G.S., applies the common law attorney-client privilege. Maxwell v. FOIC, 260 Conn. 143, 149 (2002). 

 

13.  It is concluded that the Supreme Court of Connecticut in Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145 (2000), held that the attorney-client privilege extended to a report that was compiled by an environmental consultant, and the related communications, because the report was produced and the communications were made in confidence for the purpose of obtaining legal advice.

 

14.  It is also concluded that the facts of the present case are generally analogous to those in Shew v. Freedom of Information Commission, 245 Conn. 149 (1998), where the Stuhlman fact finding report served the same purpose for attorney Felix Springer as the investigation report did in the present case for Siegel, O’Connor, O’Donnell & Beck, P.C. Id. at 152. In Shew, the Supreme Court of Connecticut held that the Stuhlman report was exempt from mandatory public disclosure based upon the portion of 1-210(b)(10), G.S., which recites the attorney-client privilege. Id. at 165.       

 

15.  It is further concluded that the facts herein are nearly entirely identical to those in Docket #FIC 2000-278; William A. Warner v. Paul Blanchette, Jr., Chairman, Board of Education, Thompson Public Schools; Merrill Robbins, Frederick Witkowski, Paul Morin, Jacklyn Bonneau, Donald Morin, Hector Morin, Jeffrey Barske, Laurence Consiglio, Jr., as members, Board of Education, Thompson Public Schools; and Board of Education, Thompson Public Schools. (See especially paragraphs 8, 9, 10, 11, 12, 19 and 21, Docket #FIC 2000-278.) In Docket #FIC 2000-278 and the present case, counsel retained an investigatory firm, the report by the investigatory firm contained information concerning alleged malfeasance and also was the basis for legal advice provided by counsel to their client, a Board of Education. The only respect in which the facts of the present case differ from those in Docket #FIC 2000-278 is that in Docket #FIC 2000-278 a copy of the investigatory report, along with a three page summary, were furnished to the respondent Board of Education, which therefore maintained its own set of the relevant public records. Id. at paragraph 12. Notwithstanding the fact that the respondent Board of Education maintained its own copy of the investigatory report in Docket #FIC 2000-278, the investigatory report was held to be exempt from mandatory public disclosure based upon the portion of 1-210(b)(10), G.S., which recites the attorney-client privilege.       

 

16.  Based on the findings of fact and conclusions of law above, it is finally concluded that the investigation report is an attorney-client privileged communication within the meaning of 1-210(b)(10), G.S.  It is further concluded that the investigation report is exempt from mandatory disclosure and that the respondents did not violate 1-210(a), G.S., when they denied the complainant’s request for a copy of the investigation report.

 

 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 March 10, 2010.

 

 

____________________________

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:

 

Steven Anderson

c/o Daniel Shepro, Esq.

Shepro & Blake, LLC

2051 Main Street

Stratford, CT 06615

 

Superintendent of Schools, Derby Public

Schools; and Board of Education, Derby

Public Schools

c/o Matthew K. Curtin, Esq.

Siegel, O’Connor, O’Donnell & Beck, PC

150 Trumbull Street

Hartford, CT 06103

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-166FD/paj/3/11/2010