FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Michael A. Winkler,  
  Complainant  
  against   Docket #FIC 2009-476
Mayor, Town of Vernon,  
  Respondent June 23, 2010
       

 

The above-captioned matter was heard as a contested case on November 9, 2009, at which time the complainant 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, by letter dated August 4, 2009, the complainant requested that the respondent provide him with copies of the following records:

a.       All billings by Town Attorney Hal Cummings to the Town of Vernon from 1/1/07 to date;

b.      All payroll records for the respondent Mayor Jason McCoy since becoming Mayor, including any agreements signed by him concerning payment of his salary as Mayor;

c.       All signed letters, without attachments, between Mayor Jason McCoy and Governor M. Jodi Rell from 7/1/08 to present.

3.      By letter dated August 17, 2009 and filed August 18, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI Act”) by denying him access to public records. 

4.      It is found that, by letter dated October 4, 2009, the respondent acknowledged the complainant’s request for records.  It is further found that under cover of the October 4, 2009 letter, the respondent provided to the complainant all of the records responsive to paragraph 2.c, above, and some of the records responsive to paragraph 2.b, above. 

5.      After the commencement of the November 9, 2009 hearing, the respondent’s counsel indicated that he desired the hearing to be continued so that he could prepare the records that he believed should be submitted to the Commission for an in camera inspection.

6.      With regard to “agreements signed by [the respondent Mayor] concerning payment of your salary as Mayor,” referenced in paragraph 2.b, above, the complainant testified that he was interested in one particular written agreement that he believed existed between the Mayor and the Town of Vernon.  The complainant explained that he wanted to receive a copy of the agreement that dealt with the following contingency:  Because the Mayor received his 2008 salary in the form of an upfront, lump sum payment, the complainant believed that there was a payback agreement in place between the Mayor and the Town, which agreement would require the Mayor to reimburse the Town for salary paid up front, in the event that the Mayor was required to leave his position for any reason prior to the completion of his term.  Finally, the complainant requested that, if no such written agreement existed, the respondent provide him with a sworn statement to that effect. 

7.      At the conclusion of the November 9, 2009 contested hearing, the hearing officer requested that the respondent submit an affidavit with respect to whether or not such a written agreement, as referred to in paragraph 6, above, existed.  The respondent’s counsel agreed that he would see to it that an affidavit was submitted to the Commission.  The respondent’s counsel further agreed that, if there was a written agreement between the Mayor and the Town of Vernon, he would see to it that a copy of such record was provided to the complainant.[1]
 

8.      At that time, the hearing officer continued the November 9, 2009 contested hearing to November 19, 2009.

9.   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.

 

10.   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 (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.

 

11.  Section 1-212(a)(1), 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.”

12.  It is found that, to the extent that the respondent maintains the records referenced in paragraph 2.a and 2.b, above, such records are “public records” and must be disclosed in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.  

13.  On December 15, 2009, the respondent submitted the records referred to in paragraph 2.a, above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  Such in camera records shall be identified at IC-2009-476-1 through IC-2009-467-56.  On January 6, 2010, the respondent submitted the affidavit described in paragraph 7, above.

14.   Based on that affidavit, it is found that there are no additional records in the respondent’s possession that are responsive to the request as set forth in paragraph 2.b, above, and further in described paragraph 6, above.

15.  Accordingly, it is concluded that the only records at issue in this case are the town attorney’s billing records, as set forth in paragraph 2.a, above.  It is the respondent’s contention that portions of these records are exempt from disclosure pursuant to 1-210(b)(10), 1-210(b)(4), and 1-210(b)(7), G.S. 

16.  The respondent first contends that portions of the following in camera records are exempt pursuant to 1-210(b)(10), G.S.: IC-2009-476-1 through IC-2009-476-17, IC-2009-476-19 through IC-2009-476-43, IC-2009-476-45 through IC-2009-476-47, and IC-2009-476-49 through IC-2009-476-56. 

 

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

18.  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.

19.  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. . . .

 

20.  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.

21.  In the context of an attorney’s billing records, the Commission notes that it is generally accepted that an attorney billing statement and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of the services performed.  See Bruno v. Bruno, FA0540049006S, 2009 Conn. Super. LEXIS 1913, at *3 (Conn. Super. Ct. July 10, 2009).  However, “. . . bills, . . . and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege.”  Id. at *5; see also New Haven v. FOIC, et al., 4 Conn. App. 216, 220, 493 A.2d 283, 285 (1985) (trial court found, after conducting an in camera review of the billing records, that there was nothing in such records to suggest they came within the purview of the attorney-client privilege). 

22.  After a careful review of the in camera records, it is found that, while the in camera records note that client conferences took place, they do not contain any mention of what the conferences concerned, nor do the records contain any confidential communications between the client and its attorney.  It is further found that the respondent’s position that the bills themselves are “communications” from an attorney to his client, which should be protected under the attorney-client privilege, is not supported under the law.  However, it is further found that the following portions of the in camera records are those parts of the billing records that evidence the substantive areas of law and/or relevant documents that an attorney was reviewing in the context of litigation, which in turn reveals the attorney’s legal strategy: 


IC-2009-476-4: line six, words five and six
[2] and line eight, word five; IC-2009-476-5:  line three, words twelve, thirteen and fourteen; IC-2009-476-11: line eight, words four and five; IC-2009-476-12: line two, words five, six, seven and eight, and line six, words four and five; IC-2009-476-21: line three, words four, five and six; IC-2009-476-24: line seventeen, words five and six; IC-2009-476-27: line one, words five, six and seven; IC-2009-476-28: line one, words five and six, and line four, words five, six, seven and eight; IC-2009-476-29: line twenty-one, words six and seven; IC-2009-476-31: line one, words seven, eight, and nine, and line six, words nine and ten; IC-2009-476-32: line six, words five, six and seven; IC-2009-476-33: line two, words four, five and six, and line seven, words five and six, and line nine, words four and five, and line eleven, words five and six; IC-2009-476-34: line one, words five, six and seven, line three, words four, five and six, line five, words five, six and seven, line eight, words three, four and five; IC-2009-476-35: line one[3], words five, six, seven and eight, and line twenty-six, words six and seven; IC-2009-476-36: line one, words five, six and seven, and line seven, word four; IC-2009-476-37: line one, words five, six, seven, eight and nine; IC-2009-476-38: line six, words seven, eight, nine and ten; IC-2009-476-39: line 2, words five, six and seven; IC-2009-476-43: line three, words five and six; IC-2009-476-45: line twenty-five3, words four, five, six and seven; IC-2009-476-47: line two, words six, seven and eight; IC-2009-476-49: line two, words five, six, seven and eight; IC-2009-476-50: line five, words five and six, line six, words five, six, seven and eight, line nine, words four and five; IC-2009-476-52: line eighteen, words six and seven, line nineteen, words five and six; and IC-2009-476-55: line one, words five, six and seven. 

23.  Based on the testimony at the contested hearing, it is found that the portions of the records identified in paragraph 22, above, concern litigation that is currently pending. 

24.  It is concluded that the portions of the in camera records identified in paragraph 22, above, fall within the protection of the attorney-client privilege and are exempt from disclosure. 

 

25.  It is found that the respondent did not waive the privilege.

 

26.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant with regard to those portions of the in camera records set forth in paragraph 22, above.

 

27.  However, it is found that, other than the portions of the records specifically identified in paragraph 22, above, the records identified in paragraph 16, above, do not contain information that is exempt from disclosure pursuant to the attorney-client privilege.  

 

28.  Based on the finding at paragraph 27, above, it is concluded that the records identified in paragraph 16, other than those portions specifically identified in paragraph 22, above, are not exempt from mandatory disclosure as records privileged by the attorney-client privilege pursuant to 1-210(b)(10), G.S.

 

29.  The respondent next contends that the portions of the following records are exempt pursuant to 1-210(b)(4), G.S.:  IC-2009-476-1 through IC-2009-476-32; IC-2009-476-35 through  IC-2009-476-42, IC-2009-476-44, IC-2009-476-45, IC-2009-476-47, IC-2009-476-49, IC-2009-476-51 through IC-2009-476-53, IC-2009-476-55 and IC-2009-476-56. 

 

30.  Section 1-210(b)(4), G.S., permits an agency to withhold from disclosure “records pertaining to strategy or 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.  It is found, however, that with regard to those records found to be exempt from disclosure pursuant to 1-210(b)(10), G.S., there is no need to address a claim of exemption pursuant to 1-210(b)(4), G.S.  It is further found that none of the remaining in camera records contains information that pertains to strategy or negotiation with respect to pending litigation.

 

32.  Based on the findings in paragraph 31, it is concluded that the records identified in paragraph 29, above, are not exempt from mandatory disclosure pursuant to 1-210(b)(4), G.S.

 

33.  Finally, the respondent contends that the following portions of the following records are exempt pursuant to 1-210(b)(7), G.S.: IC-2009-476-33, IC-2009-476-34, IC-2009-478-42, IC-2009-478-43, IC-2009-478-45, IC-2009-478-46, IC-2009-478-48, IC-2009-478-50, and IC-2009-478-52 through IC-2009-478-54.

 

34.  Section 1-210(b)(7), G.S., permits an agency to withhold from disclosure records containing the following information: “the contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property. . ., until such time as all of the property has been acquired or all proceedings or transactions have been terminated. . . .”

35.  After an in camera inspection of the records identified in paragraph 33, above, it is found that none of the proposed redactions reflect the contents of “real estate appraisals” or “engineering or feasibility estimates and evaluations” made for an agency relative to the acquisition of property, within the meaning of 1-210(b)(7), G.S. 

36.  Based on the finding in paragraph 35, above, it is concluded that the records identified in paragraph 33, above, are not exempt from mandatory disclosure as records containing “real estate appraisals” or “engineering or feasibility estimates and evaluations” made for an agency relative to the acquisition of property, within the meaning of 1-210(b)(7), G.S. 

37.  Based on the conclusions in paragraphs 28, 32, and 36, above, it is further concluded that the requested records are subject to mandatory disclosure, except for those portions of the records specifically identified as exempt from disclosure in paragraph 22, above.  It is further concluded that the respondent violated 1-210(a) and 1-212(a), G.S., when he declined to provide such records to the complainant.

 

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

 

1.      The respondent shall forthwith provide to the complainant, free of charge, a copy of all requested records that have not previously been provided, except for those portions of the in camera records specifically identified in paragraph 22 of the findings, above. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 23, 2010.

 

 

____________________________

Cynthia A. Cannata

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:

 

Michael A. Winkler

20 Gottier Drive

Vernon, CT  06066

 

Mayor, Town of Vernon

c/o Martin B. Burke, Esq.

P.O. Box 388

130 Union Street

Rockville, CT  06066

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-476/FD/cac/6/28/2010

                                                                       

 

 



[1] After some oral and written argument with respect to whether or not a hearing officer’s request (or order) for a sworn statement would be tantamount to the hearing officer making “a request for a public record”  not previously in existence, on January 6, 2010, counsel for the respondent submitted his client’s affidavit.

[2] For the convenience of the parties who will be referring to the page/line/word reference in this Order, the Commission notes that page numbers are those supplied by the respondent on the in camera records themselves; the line numbers were inserted into the in camera records by counsel to the Commission in the area of the records dealing with the nature of the services provided; and, for purposes of discerning the particular word reference, the calendar date of the entry for legal services, which is in a numerical format, is treated as one word. 

 

[3] The Commission notes that the respondent indicated the portions of the in camera records for which he was claiming an exemption by highlighting said portions with a yellow highlighter, as requested by the hearing officer.  In the case of IC-2009-476-35 and IC-2009-476-45, only a part of one line in each of these records is highlighted.  However, upon review, it appears that the respondent actually meant to highlight all of the words in each of these lines.  The Commission reviewed these two records as if line number one in IC-2009-476-35, and line number twenty-five in IC-2009-476-45 were highlighted in their entirety.