FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Steven Edelman,  
  Complainant  
  against   Docket #FIC 2010-241
Jon Berk, Gordon Muir & Foley,
Special Counsel to the Town of
Windham; Russell Jarem,
Gordon Muir & Foley, Special
Counsel to the Town of
Windham,
 
  Respondents September 22, 2010
       

 

The caption of this matter has been amended pursuant to the request of the complainant dated July 6, 2010 and based upon evidence at the hearing. The above-captioned matter was heard as a contested case on July 12, 2010, at which time both the complainant and the respondents appeared and presented testimony and argument on the complaint. On July 28, 2010, the Commission remanded the matter to the hearing officer at the request of the complainant. 

 

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

 

1.  It is found that, by letter dated April 1, 2010, the complainant made a far- reaching request to the respondents, and others no longer relevant, to inspect six categories of records concerning the complainant and certain issues relating to the building code (the “requested records”).

 

2.  It is found that, by letter dated April 6, 2010, the respondents declined to respond to the substance of the complainant’s request, stating that they were not public agencies or the functional equivalent of public agencies, and were not subject to the provisions of the Freedom of Information Act (“FOIA”).   

 

3.  By letter dated and filed with the Commission on April 14, 2010, the complainant appealed to the Commission, alleging that the respondents’ failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainant also requested that civil penalties be assessed against the respondents.

 

4.  Section 1-200, G.S., states in relevant parts:

 

(1)   “Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency”, as defined in section 32-222.

 

….

 

(11)  “Governmental function” means the administration or management of a program of a public agency, which program has been authorized by law to be administered or managed by a person, where (A) the person receives funding from the public agency for administering or managing the program, (B) the public agency is involved in or regulates to a significant extent such person’s administration or management of the program, whether or not such involvement or regulation is direct, pervasive, continuous or day-to-day, and (C) the person participates in the formulation of governmental policies or decisions in connection with the administration or management of the program and such policies or decisions bind the public agency.  “Governmental function” shall not include the mere provision of goods or services to a public agency without the delegated responsibility to administer or manage a program of a public agency. 

 

5.  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. 

 

6.  Section 1-218, G.S., states:

 

Each contract in excess of two million five hundred thousand dollars between a public agency and a person for the performance of a governmental function shall (1) provide that the public agency is entitled to receive a copy of records and files related to the performance of the governmental function, and (2) indicate that such records and files are subject to the Freedom of Information Act and may be disclosed by the public agency pursuant to the Freedom of Information Act.  No request to inspect or copy such records or files shall be valid unless the request is made to the public agency in accordance with the Freedom of Information Act.  Any complaint by a person who is denied the right to inspect or copy such records or files shall be brought to the Freedom of Information Commission in accordance with the provisions of sections 1-205 and 1-206.

 

            7.  It is found that the respondents are lawyers at the law firm of Gordon, Muir and Foley, LLP, which, pursuant to an insurance policy, was retained by Kemper Insurance Company to defend the Town of Windham. The scope of the relationship between Gordon, Muir and Foley, LLP and the Town of Windham is limited to the defense of Edelman v. Page, and related proceedings such as this contested case. Neither respondent is Town Attorney of Windham. Both respondents represent the Town of Windham as independently retained lawyers. The respondents do not administer or manage the program of any public agency, or participate in the formulation of governmental policies or decisions in connection with the administration or management of any governmental program.

 

            8.  It is concluded that the respondents are not public agencies, the functional equivalent of public agencies, or implementing agencies as defined in 32-222, G.S. Hallas v. Freedom of Information Commission, 18 Conn. App. 291 (1989) (bond counsel do not constitute the functional equivalent  of a public agency). See also Londregan v. Freedom of Information Commission, Nos. 52 61 05 and 52 93 45, Superior Court, New London Judicial District, July 13, 1994 (private law office of city’s Director of Law held subject to FOIA); and Town of Windham v. Freedom of Information Commission, 48 Conn. App. 522 (1998) (records of town attorney held not to be public records under certain facts).

 

9.  It is concluded that the respondents did not violate 1-210(a) and 1-212(a), G.S., when they declined to provide the records to the complainant.

 

 

10.  With respect to the complainant’s request for the imposition of a civil penalty, 1-206(b)(2), G.S., provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

11.  Based on the conclusion at paragraph 9, above, the Commission finds that there are no grounds that warrant the imposition of a civil penalty.

 

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

 

1.      The complaint is hereby dismissed.

 

2.      The complainant has, on many occasions since 1994, requested access to or copies of records from the Town of Windham. In 2010 alone, seven contested cases filed by the complainant have been adjudicated. At the hearing, both the complainant and the respondents expressed interest in a comprehensive settlement of the complainant’s disputes with the Town of Windham. The Commission urges the complainant to pursue a comprehensive settlement vigorously.

 

 

 

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

 

Steven Edelman

Route Fourteen

Windham Center, CT 06280

 

Jon Berk, Gordon Muir & Foley, Special Counsel to the Town of Windham;

Russell Jarem, Gordon Muir & Foley, Special Counsel to the Town of Windham

c/o Russell N. Jarem, Esq.

Gordon, Muir & Foley, LLP

Ten Columbus Blvd.

Hartford, CT  06106

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

FIC/2010-241/FD/cac/9/28/2010