FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Waterbury Teachers’ Association,  
  Complainant  
  against   Docket #FIC 2009-359

Superintendent of Schools,

Waterbury Public Schools;
and Board of Education,
Waterbury Public Schools,

 
  Respondents May 26, 2010
       

 

The above-captioned matter was heard as a contested case on November 5, 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.  It is found that, by letter dated April 7, 2009, the complainant made a request to the respondents for copies of the following records:

 

A.    A listing of the total dollars and all invoices and or other billing documents submitted by the firm of Shipman & Goodwin LLP for the fiscal years 2007-08 and 2008-09 to date;

B.     Electronic copies of any and all invoices and or other billing submitted by the firm of Shipman and Goodwin LLP for the fiscal years 2007-08 and 2008-09 to date; and

C.     The annual salary for Attorney Maurice B. Mosley for the fiscal years 2007-08 and 2009-09.

 

3.  It is found that, by letter dated April 8, 2009 the respondents acknowledged the complainant’s request for records, and sought some clarification with regard to the scope of the request as it pertained to request 2.B, above.  The respondents further indicated that they would contact the complainant once the responsive records had been gathered and reviewed for possible exempt material. 

4.  It is found that, by letter dated April 28, 2009, the complainant again corresponded with the respondents, this time seeking to obtain the status of its April 7, 2009 request.    

 

5.  It is found that, by cover letter dated May 18, 2009, the respondents provided the complainant with 175 pages of records responsive to the April 7, 2009 request.  It is further found that respondents informed the complainant that they had redacted certain information from the records because they believed such information was exempt from the disclosure provisions of the FOI Act.

 

 6.  By letter dated June 18, 2009 and filed June 19, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying its requests for records.  In the letter of complaint, the complainant indicated that it was challenging the redactions made in the records that had been provided to the complainant by the respondents.

 

7. 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.

 

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

 

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.

 

9. Section 1-212(a), G.S., provides in relevant part that:

 

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

 

10. It is found that the respondents maintain the documents described in paragraph 2, above, and it is therefore concluded that such records are “public records” within the meaning of 1-200(5), 1-210(a), and 1-212(a) G.S., and that copies of such records must be provided in accordance with 1-210(a), and 1-212(a), G.S., unless the records, or portions of the records, are exempt from disclosure. 

 

11. At the hearing on this matter, the parties jointly represented that, of the 175 records that were initially at issue in this case, they had been able to resolve their disputes for all but one record.  

 

12. At the close of the hearing in this case, the respondents submitted the record referred to in paragraph 11, above, to the Commission for an in camera inspection.  Such in camera record shall be identified at IC-2009-359-01. 

13. The respondents contend that IC-2009-359-01 is exempt from disclosure pursuant to 1-210(b)(10), G.S., which permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.” 

 

14. 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.

15.  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. . . .

 

16. 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.

 

17. In support of the exemption, the respondents submitted the affidavit of Ron Frost.  In his affidavit, Mr. Frost avers that the record at issue is a billing invoice from Shipman and Goodwin LLC (“Shipman”). He further avers that, at the time of the telephone conference referred to in the billing invoice, he was employed as the Personnel Director for Waterbury Department of Education.  He further avers that, in his position as Personnel Director, he contacted Shipman Attorney Brian Clemow for legal advice regarding an employment matter.  Finally, he avers that the redacted portion of the billing invoice identifies the subject about which Mr. Frost sought legal advice from Attorney Clemow.   

 

18. It is found that the information redacted from IC-2009-359-01 reveals the subject matter for which legal advice was sought by a public employee from his attorney concerning the employee’s professional obligations.

 

19. It is found that IC-2009-359-01 is written communication from the attorney of the respondents’ employee, concerning the subject matter for which legal advice was solicited by such employee.

 

20. After a careful review of IC-2009-359-01, it is found that the redacted information in this record is a communication related to legal advice sought from a professional legal advisor by a public employee acting in the course of his duties, and that such communication described the nature of the matter under consideration by respondents’ employee.  It is further found that the communication was made in confidence.  It is found, therefore, that the redacted portions of the record in question constitute a record of communication privileged by the attorney-client relationship.

 

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

 

22. It is found that the FOI Act exempts the record at issue from mandatory disclosure, pursuant to the provisions of 1-210(b)(10), G.S.

 

23. Accordingly, it is concluded that the respondents did not violate the FOI Act when they redacted portions from IC-2009-359-01.

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

1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 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:

 

Waterbury Teachers’ Association

c/o Christopher P. Hankins, Esq.

CEA Legal Department

21 Oak Street, Suite 500

Hartford, CT 06106

 

Superintendent of Schools,

Waterbury Public Schools;
and Board of Education,
Waterbury Public Schools

c/o Kevin J. Daly, Jr., Esq.

Corporation Counsel’s Office

26 Kendrick Avenue, 8th Floor

Waterbury, CT 06702

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-359FD/paj/5/28/2010