FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Alex Wood and The Journal Inquirer,

Complainants

against Docket #FIC 86-38

First Selectman of the Town of Suffield and the Town of Suffield,

Respondents March 26, 1986

The above-captioned matter was heard as a contested case on February 24, 1986, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. On or about July 16, 1977 a resident of the Town of Suffield, Janet L. G. Graham, was ejected from her residence and admitted to Norwich State Hospital. Possessions and personal effects of Ms. Graham were removed from her residence and stored at a town storage facility.

3. In 1979 Ms. Graham brought suit against the Town of Suffield, alleging that it failed to maintain properly and to account for her property, the result being the loss of some of such property.

4. In 1983 the police department of the Town of Suffield, at the request of the then town attorney, conducted an investigation of the facts surrounding the Graham matter.

5. On or about October 3, 1985 Ms. Graham withdrew her lawsuit against the Town of Suffield after having reached an agreement with the Town in settlement of the matter.

6. By letter dated February 5, 1986 the complainants made a request of the respondent first selectman for access to inspect the following records in the possession of the town or its attorneys:

Docket #FIC 86-38 Page Two

a. All depositions in the Graham litigation;

b. All reports, statements or other documents collected or produced by the Suffield police department in any investigation of the disappearance of Ms. Graham's belongings; and

c. All recorded statements by people with knowledge of facts involved in the Graham litigation, including reports of experts and statements by potential witnesses.

7. By letter of complaint filed with the Commission on February 13, 1986 the complainants appealed the respondents' failure to respond to their request.

8. By letter dated February 12, 1986 the respondent first selectman directed the complainant Wood to the files of the Superior Court for access to copies of depositions in the Graham litigation. Upon inquiry at Superior Court the complainant was told that the transcripts of the depositions were not available to the public because they had never been introduced into evidence.

9. At hearing, Ms. Phyllis Corneal was granted permission to participate as an intervenor at the hearing level only. Ms. Corneal, formerly counsel to Ms. Graham, is a defendant in a lawsuit brought by Ms. Graham which alleges that Ms. Corneal took possession of certain items of Ms. Graham's personal property. Also at hearing, counsel for the respondents stated that counsel for Ms. Graham was unable to attend the hearing but that he had requested that Ms. Graham's objection to disclosure of the records in question be entered into the record of the hearing.

10. It is found that the law firm of Regnier, Taylor, Curran and Langenbach acted as special trial counsel to the Town of Suffield in the Graham litigation and that the records sought by the complainants are in the possession of such firm. The involvement of Suffield's town attorney was limited to the contacting of potential witnesses.

11. The respondents claim that special counsel to the Town of Suffield is not a public agency and that the defendant in the lawsuit was the Town of Suffield which, it claims, is also not a public agency.

12. The respondents' claim that a suit against the Town of Suffield is not a suit against a public agency is without merit. To the extent that the law firm of Regnier, Taylor,

Docket #FIC 86-38 Page Three

Curran and Langenbach generated records on behalf of the Town in the defense of Ms. Graham's suit, such records are recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, within the meaning of 1-18a(d), G.S. A public agency may not shield public records from disclosure by placing them or allowing them to remain in the hands of a private law firm.

13. It is concluded that the records in question are public records within the meaning of 1-18a(d), G.S., subject to retrieval and disclosure by the respondent first selectman in his capacity as an official of the Town of Suffield.

14. The respondents also claim that the depositions contain counsel's notes, which notes cannot be deleted from the documents and that such notes and other material constitute an attorney's work product, the disclosure of which this Commission cannot compel.

15. It is found that nothing in the Freedom of Information Act provides an exemption from disclosure for an attorney's work product. The respondents failed to prove the applicability of another state statute or other federal law exempting an attorney's work product from disclosure.

16. The respondents also claim that the Superior Court has determined that the depositions on file in court were not available to the public.

17. It is found that a Superior Court policy of not releasing copies of depositions that have not been introduced into evidence is not relevant to a determination of whether such depositions are subject to disclosure under the Freedom of Information Act. The respondent failed to prove that there has been issued any judicial prohibition against disclosure of such records by the respondents.

18. The respondents also failed to prove the existence or extent of a court order which, they claim, restricts the dissemination, by the Town of Suffield, of information regarding Phyllis Corneal.

19. The respondents also claim that the records contain comments on Ms. Graham's lifestyle, the disclosure of which would invade Ms. Graham's privacy and that disclosure of the records might invade the privacy of Ms. Corneal.

20. It is found that if the records in question contain private information regarding the medical files of Ms. Graham, the disclosure of which would constitute an invasion of personal privacy, such information is exempted from disclosure by 1-19(b)(2), G.S.

Docket #FIC 86-38 Page Four

21. The respondents, however, failed to prove that the records in question contain information regarding Ms. Corneal the disclosure of which would constitute an invasion of personal privacy.

22. The respondents also claim that the records in question contain information regarding the strategy involved in defending the suit brought by Ms. Graham and that such information is exempted from disclosure by 1-19(b)(4), G.S.

23. It is found that the suit brought by Ms. Graham against the Town of Suffield has been settled and the matter withdrawn. The respondents' claim that the records are exempted from disclosure by 1-19(b)(4), G.S. is, therefore, without merit.

24. The respondents also claim that the requested records contain confidential information the disclosure of which could prejudice Ms. Graham or Ms. Corneal and potentially could bring the Town back into the suit and that such information is exempted from disclosure by 1-19(b)(10), G.S.

25. It is found that only those portions of the files which contain confidential communications from the Town of Suffield to its counsel, including those portions which contain remarks which may be construed as admissions of the town, are exempted from disclosure by 1-19(b)(10), G.S.

26. The respondents also claim that disclosure of the records in question is prohibited by 1-19b(b), G.S., regarding the rights of litigants.

27. The respondents failed to prove, however, that the complainants' exercise of the rights granted by the Freedom of Information Act with respect to Ms. Graham's suit affects the rights of litigants under the laws of discovery of this state.

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

Docket #FIC86-38

page 5

1. The respondent first selectman shall forthwith provide the complainants with access to the records relating to Ms. Graham's suit against the Town of Suffield, referred to at paragraph 6 of the findings, above. The respondent first selectman may mask or delete from such records information exempted from disclosure by 1-19(b)(2) and 1-19(b)(10), G.S., as more fully described above.

Approved by order of the Freedom of Information Commission at its regular meeting of March 26, 1986.

Karen J. Haggett

Clerk of the Commission