FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Gail Lane and Tom Lane,  
  Complainants  
  against   Docket #FIC 2009-785
Commissioner, State of Connecticut,
Department of Environmental Protection;
and State of Connecticut, Department of
Environmental Protection,
 
  Respondents November 17, 2010
       

 

The above-captioned matter was heard as a contested case on August 17, 2010, at which time the complainants 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 on July 10, 2009, the complainants requested a copy of “any and all information in the possession of [the respondents] referencing or regarding the property known as 32 Money Point Road, Mystic, Connecticut including but not limited to applications, analysis, proposals, copies of any investigative notes, electronic mail messages, facsimiles, file folders, notations and/or phone messages.”

 

3.      By letter filed on December 28, 2009, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by making an incomplete and untimely response to the complainants’ request, described in paragraph 2, above.  The complainants also alleged that the respondents improperly relied on certain exemptions in withholding some of the records. 

 

4.      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.

5.      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.

 

6.      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.”

 

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

 

8.       It is found that the respondents replied to the complainants’ request on the day the respondents received it, Monday, July 13, 2009, and promised to notify the complainants when the search for records was complete.

 

9.      It is found that the respondents contacted the complainants within the following week and asked whether the complainants would consider narrowing the scope of their request.  It is found that the respondents hoped to avoid duplication of records that either had been previously provided to the complainants, that the complainants had provided to the respondents, or that would be soon provided to the complainants as part of the administrative record in ongoing litigation between the complainants and the respondents.   It is found that counsel for the respondents also asked whether the request applied to the entire Department of Environmental Protection, or was limited to the Office of Long Island Sound programs.

 

10.   It is found that on July 24, 2009, the complainants informed the respondents that they did not wish to narrow the scope of their request and that it applied to the whole agency.

 

11.   It is found that on July 28, 2009, the respondents informed the complainants that there were “hundreds” of records responsive to the request, and that the respondents charged 25 cents per page for copies.  It is found that the respondents asked complainants’ counsel what their clients’ limit would be for copying charges and for authorization to make such copies. 

 

12.   It is found that on July 28, 2009, the complainants’ counsel directed the respondents not to exceed $200 in copying charges.  It is found that the respondents made copies of records and on August 7, 2009, requested payment of $200 from the complainants before sending the copies to the complainants.

 

13.   The complainants claim that the respondents requested prepayment of copying fees in order to discourage their request.  The complainants also contend that the respondents selectively enforce their requirement of prepayment.

 

14.   Section 1-212(c), G.S., provides in relevant part:  “A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.”

 

15.   It is found that the respondents did not violate the FOI Act by requiring prepayment of copying fees from the complainants.  It is also found that the respondents did not require such prepayment to discourage the complainants’ requests, and that there is no evidence that the respondents selectively or unfairly enforce their requirement of prepayment.

 

16.   It is found that on August 20, 2009, the complainants’ counsel asked respondents whether they had received a check from the complainants for $200.  It is found that the respondents informed the complainants that they had not received payment and were awaiting payment before proceeding with the remainder of the request.

 

17.   It is found that on September 28, 2009, the complainants sent a check for $200 to the respondents and the respondents received the check on September 30, 2009. 

 

18.   It is found that upon receipt of the complainants’ second check, the respondents proceeded with processing the request for records, and provided the first group of records (up to $200 in copying fees) to the complainants’ on October 2, 2009.

 

19.   It is found that on October 13, 2009, the complainants informed the respondents that in lieu of prepaying for records, they would prefer to inspect the records, and asked the respondents to let them know when to come to the respondents’ office in Hartford to do so.

 

20.   It is found that the respondents informed the complainants on November 3, 2009, that the records would be available for inspection by the following week.  It is found that due to the respondents’ counsel’s unforeseen medical leave of about one week, the complainants inspected the records on November 24, 2009, instead of November 12, 2009.

 

21.   It is found that before the complainants inspected the records on November 24, 2009, the respondents became aware that a few records were missing.  It is found that the respondents informed the complainants of the omission, and provided such copies to the complainants via e-mail on Wednesday, November 25, 2009.

 

22.   It is found that the interval between the date that the complainants told the respondents that they wished to inspect the records and the date that the complainants inspected the records was prompt, in light of the scope of the complainants’ request, the volume of responsive records, and the need to examine electronic records for permissively exempt information.   

 

23.   The complainants allege that the respondents failed to provide copies of all of the records responsive to their request.  The complainants identified some of the records that they allege were missing; the respondents dispute the complainants’ allegation.  It is found that the complainants never told the respondents about missing records, making it impossible for the respondents to rectify any omission.  It is found that the respondents’ search for records was diligent and, therefore, not in violation of the FOI Act.

 

24.   The respondents claimed that some of the records were exempt from mandatory disclosure pursuant to 1-210(b)(10), 1-210(b)(1), and 1-210(b)(4), G.S.  The respondents submitted copies of such records to the Commission for in camera inspection.  Such records are hereby identified as IC-2009-785-1 through IC-2009-785-266.  The Index to Records Submitted for In Camera Inspection (“Index”), incorporated herein by reference, identifies the exemptions that the respondents claim for each record.

 

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

 

26.   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.

 

27.   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. . . .”

 

28.   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.

 

29.     Upon careful examination of the records claimed to be exempt pursuant to 1-210(b)(10), G.S., as referenced in the Index, it is found that such records are either communications transmitted in confidence between attorneys for the respondents and employees and officials of the respondents relating to legal advice sought by respondents’ employees and officials, or are records prepared by respondents’ attorneys in furtherance of the rendition of such legal advice, within the meaning of 52-146r(2), G.S.

 

30.     It is concluded that the records referenced in paragraph 29, above, constitute communications privileged by the attorney-client relationship within the meaning of 1-210(b)(10), G.S.   It is concluded, therefore, that such records are exempt from disclosure pursuant to 1-210(b)(10), G.S., and that the respondents did not violate the FOI Act by withholding such records from disclosure.

 

31.     Section 1-210(b)(1), G.S., permits exemption of :

 

Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

 

32.   Section 1-210(e), G.S., provides in relevant part:

 

Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of:

 

(1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….

 

33.     Upon careful examination of the records claimed to be exempt pursuant to 1-210(b)(1), G.S., as referenced in the Index, it is found that such records are preliminary drafts. 

 

34.     It is found that the respondents determined that the public interest in withholding the records referenced in paragraph 33, above, clearly outweighed the public interest in disclosure.  It is found that the respondents found that the public interest in being able to freely exchange ideas and strategies in ongoing litigation against the complainants outweighed the public interest in disclosure of such records. 

 

35.     The Commission notes that, with the exception of IC-2010-785-225 through IC-2010-785-229, all of the records for which the respondent claimed an exemption pursuant to 1-210(b)(1), G.S., the respondents also proved to be exempt pursuant to 1-210(b)(10), G.S. (see paragraphs 25 - 30, above) or 1-210(b)(4), G.S. (see paragraphs 38 - 42, below).  It is found, therefore, that although some of those records may be intra-agency memoranda, advisory opinions, recommendations or reports comprising part of the process by which governmental decisions and polices are formulated within the meaning of 1-210(e)(1), G.S., and would otherwise be required to be disclosed, such records are exempt from disclosure pursuant to either 1-210(b)(10) or 1-210(b)(4), G.S.

 

36.      Upon careful examination of IC-2010-785-225 through IC-2010-785-229, it is found that such records are preliminary drafts of a memorandum, prepared by a member of the staff of the respondents, which was subject to revision prior to submission to or discussion among the members of the respondents, within the meaning of 1-210(e)(1), G.S. 

37.     It is concluded, therefore, that the records referenced in paragraph 36, above, are exempt from disclosure.

 

38.     Section 1-210(b)(4), G.S., provides that disclosure is not required of:

 

Records pertaining to strategy and 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 …

 

39.     Section 1-200(8), G.S., defines “pending claim” as “a written notice to an agency which sets forth a demand for legal relief which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”

 

40.     Section 1-200(9), G.S., defines “pending litigation” as:

 

(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

41.     It is found that the respondents considered taking enforcement action against the complainants to remove allegedly unpermitted structures on their property.  It is found that the complainants subsequently filed a Petition for Declaratory Ruling with the respondents.  It is found that the respondents issued a ruling on the Petition that was unfavorable to the complainants, who took an administrative appeal of the respondents’ ruling to the Superior Court.  It is found that the appeal was pending at the time of the complainants’ request for records and was pending at the time of the hearing in this matter.

 

42.     Upon careful examination of the records claimed to be exempt pursuant to 1-210(b)(4), G.S., as referenced in the Index, it is found that such records pertain to strategy or negotiations with respect to pending claims or pending litigation to which the respondents are a party within the meaning of 1-210(b)(4), G.S.

 

43.     It is concluded, therefore, that the records referenced in paragraph 42, above, are exempt from disclosure.

 

44.     Accordingly, it is concluded that the respondents did not violate the FOI Act by withholding from disclosure the records identified on the Index as IC-2009-745-1 through IC-2009-745-266.

 

 

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 November 17, 2010.

 

 

____________________________

S. Wilson

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:

 

Gail Lane and Tom Lane

C/o Tracey Lane Russo, Esq.

DeFilippo & Russo, LLC

4 Research Drive, Suite 402

Shelton, CT 06484


Commissioner, State of Connecticut,

Department of Environmental Protection;

and State of Connecticut, Department of

Environmental Protection

C/o Dean Applefield, Esq.

State of Connecticut

Department of Environmental Protection

79 Elm Street

Hartford, CT 06106

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-785FD/sw/11/22/2010