FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
David Cummings,  
  Complainant  
  against   Docket #FIC 2009-564
State of Connecticut Judicial Branch,
Administrative Service Division
Director Robert Coffey
Human Resources Management Unit,
 
  Respondents September 22, 2010
       

 

The above-captioned matter was heard as a contested case on August 4, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The hearing officer granted the complainant’s unopposed motion to amend the caption of this matter to add the name of the Director of the Human Resources Management Unit and to add the Administrative Service Division as respondents.

 

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 on August 10, 2009, the complainant made the following written request for records:

 

I am respectively requesting a date time and place to inspect, copy records, letters, memos, e-mails, sent to and received from anyone in your office HRM subject David Cummings and also real time transcription and request an or accommodations for disabled which is also to include the policy and procedure in which disabled ADA certified people are to meet with Judicial Council to discuss on the usefulness and necessity the accommodations such as David Cummings as referred to By Attorney Pelitteer in his letter dated May 14, 2009, this request is also to include all correspondence to and from anyone e-mails, pictures, memos, notes recording, letters to and from Linda Dow aka Linda Furguson also Laurie Parent Aka Ann Parent, and Robert Coffey.

 

3.      It is found that the respondents construed the complainant’s request, described in paragraph 2, above, as a request for records concerning his request for accommodations under the Americans with Disabilities Act (“ADA”).

 

4.      It is found that on August 26, 2009, the respondents provided 72 pages of records for the complainant’s inspection.  Such pages included e-mails and the contents of the respondents’ file on the complainant’s request for accommodation.

 

5.      By letter filed September 24, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide copies of all the records he requested, described in paragraph 2, above, and by failing to provide copies promptly. 

 

6.      Section 1-200(5), G.S., defines “public records” as follows:

 

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, …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., 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

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

 

9.       It is concluded that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.   It is found that counsel for the respondents told the complainant on August 26, 2009, that the records he requested were available at the office of Human Resources Management (“HRM”) and that he did not need an appointment.  It is found that the complainant went to HRM on the afternoon of August 26, 2009. 

 

11.   It is found that after inspecting the records, the complainant informed the respondents at least five times, between August 26, 2009, and the date of the complainant’s appeal to this Commission, that the 72 pages of records he inspected was an incomplete response to his request of August 10, 2009, and that missing from the records provided on August 26, 2009, were copies of his medical records, as well as other records concerning his request for accommodation.    

 

12.   It is found that the respondents provided copies of the complainant’s medical records on October 29, 2009.

 

13.   It is found that the respondents initially did not understand that the complainant wished to inspect a copy of his medical records, because it was he who had provided them to the respondents in the first place.  It is found that the respondents ordinarily keep medical records segregated from other records in a person’s ADA file, out of respect for the person’s privacy, and mark such records “confidential.”  It is found that the respondents do not ordinarily provide copies of medical records.

 

14.   Nevertheless, it is found that the respondents failed to provide the complainant’s medical records to him in a prompt manner once they learned that such records were part of his request for records. 

 

15.   Accordingly, it is concluded that the respondents violated the promptness requirements of 1-210(a) and 1-212(a), G.S.

 

16.   It is found that when the complainant inspected the records provided to him on August 26, 2009, he informed the respondents that not only were his medical records missing, but also a significant number of other records. 

 

17.   It is found that the respondents had divided the records responsive to the complainant’s request into two piles; one contained records that the complainant had previously inspected, and the other contained the 72 pages of “new” records.  It is found that although the complainant informed the employee at HRM who accompanied him during his inspection of the records that there were records missing, no one at HRM knew about the other pile of “previously inspected” records, which was in the office of an attorney who was absent.  It is found that the complainant was unable to inspect those records at that time.  It is found that counsel for the respondents had left a letter with the package of 72 pages of records informing the complainant of the other set, but no one in the office of Human Resources Management gave him the letter.

 

18.   It is found that on September 9, 2009, the complainant learned, after repeated phone calls to the respondents, that the respondents had the other set of records – the ones previously made available to him – for his inspection.  It is found that the complainant subsequently inspected such records. 

 

19.   It is found that the respondents failed to provide the records described in paragraph 17 – the “previously inspected” records – in a prompt manner.

 

20.   Accordingly, it is concluded that the respondents violated the promptness requirements of 1-210(a) and 1-212(a), G.S.

 

21.   The complainant claims that the respondents failed to provide the policies and procedures he requested.  It is found that in complying with an earlier request for records, the respondents provided the complainant with the website address of the ADA subcommittee of the Judicial Branch Public Service and Trust Committee.  It is found, however, that at no time did the respondents inform the complainant in response to his request of August 10, 2009, that the policies and procedures could be accessed through a link to “ADA Home,” which provides the Judicial Branch’s rules and procedures about ADA accommodations.

 

22.   Accordingly, it is concluded that the respondents violated 1-210(a) and 1-212(a), G.S., by failing to provide paper copies of such records or to provide clear instructions on electronic access to such records.

 

23.   The complainant also claims that the respondents failed to provide him with all the e-mails and memoranda that he requested.  In addition, at the hearing in this matter, the complainant produced three letters from 1997 and 1998 that appear to concern his request for accommodations.  It is found that the respondents did not produce such letters in response to the complainant’s request of August 10, 2009. 

 

24.   It is found, however, that there is no evidence that the respondents maintained such records at the time of the complainant’s request.  It is found that the respondents conducted a diligent search for records based on the complainant’s request and ultimately provided such records, except for those described in paragraph 25, below, to the complainant. 

 

25.   The respondents claim that some of the records that are responsive to the complainant’s request are exempt pursuant to 1-210(b)(10), G.S.  The respondents submitted a copy of such records to the Commission for in-camera inspection.  The records are hereby identified as IC-2009-564-1 through IC-2009-564-14. 

 

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

 

27.   Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in 1-210(b)(10), G.S.   Such 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.

 

28.   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. . . .”

 

29.  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.

 

30.  The respondents do not claim an exemption for IC-2009-564-2, and it is found that the respondents provided a copy of such record to the complainant.

 

31.     It is found that IC-2009-564-1 and IC-2009-564-3 through IC-2009-564-14 consist of written communication transmitted in confidence between the respondents and a government attorney relating to legal advice sought by the respondents, within the meaning of 52-146r(2), G.S. 

 

32.     It is concluded that in camera records IC-2009-564-1 and IC-2009-564-3 through IC-2009-564-14 constitute communications privileged by the attorney-client relationship within the meaning of 1-210(b)(10), G.S.

 

33.     It is concluded, therefore, that IC-2009-564-1 and IC-2009-564-3 through IC-2009-564-14 are permissively exempt from disclosure pursuant to 1-210(b)(10), G.S., and that the respondents did not violate the FOI Act by withholding copies of such records from the complainant.

 

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

 

1.      Henceforth, the respondents shall strictly comply with the requirements of 1-210(a) and 1-212(a), G.S.

 

                                                                                   

Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 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:

 

David Cummings

PO Box 84

Ellington, CT 06029

 

State of Connecticut Judicial Branch,

Administrative Service Division

Director Robert Coffey

Human Resources Management Unit

c/o Martin R. Libbin, Esq.

State of Connecticut, Judicial Branch

100 Washington Street

Hartford, CT 06106

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-564FD/paj/9/22/2010