FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Dwinette E. Johnson,
Complainant
against Docket #FIC 94-251
Hartford City Manager and Hartford Corporation Counsel,
Respondents April 26, 1995
The above-captioned matter was heard as a contested case on October 11, 1994, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. After the hearing, the complainant submitted 910 pages of documents to the Commission for in camera inspection.
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 1-18a(a), G.S.
2. By letter of complaint filed August 11, 1994, the complainant appealed to the Commission, alleging that her August 1, 1994 request to inspect and copy documents relating to a certain garage lease and amendments had been denied.
3. It is found that the complainant by letters dated August 1, 1994 made requests of both respondents for access to any and all documents relating to the Church Street Parking Garage lease and its amendments.
4. It is found that, apart from offering the complainant a copy of the lease itself, which she already had, the respondents denied the complainant's request in its entirety.
5. It is found that the city of Hartford owns a certain garage located on Church Street in Hartford.
6. It is found that the city leases the garage to Monitor Parking Corporation pursuant to a 1985 lease agreement, and that the complainant is a member of the law firm representing an assignee of Monitor.
7. It is found that the city and Monitor have disputed who is responsible for certain maintenance, repairs and improvements to the garage since at least 1987.
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8. It is found that the city threatened to default Monitor in 1992, and that the parties then reached a settlement of that threat by amending the lease in 1993.
9. It is found that the respondent city manager concluded in 1994 that the lease amendment was null and void, and notified Monitor that the city would not honor it.
10. It is found that the in camera documents submitted to the Commission are responsive to the complainant's request.
11. It is also concluded that the in camera documents are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
12. The respondents maintain that, aside from the lease itself and the lease amendment, all 910 pages of the requested records pertaining to the lease and its amendment are exempt from disclosure pursuant to 1-19(b)(1), 1-19(b)(4), 1-19(b)(10), 1-19b(b), G.S., and as attorney work product.
13. The Commission notes that it is the respondents' burden to prove the applicability of the exemptions that they cite.
14. The Commission also notes that it is not obligated to accept conclusory representations of counsel as to the applicability of claimed exemptions.
15. It is found that the documents submitted to the Commission for in camera inspection include, among other things, duplicate copies of the same records; records for which the attorney-client privilege is claimed, but which on their face are not communications between attorney and client; multiple drafts of documents without explanation of what was drafted when; and copies of ostensibly public inspections and expense reports now claimed, without detailed explanation, to be exempt from disclosure.
16. It is also found not credible that every word of each of the 910 pages of documents--some of which are merely cover letters or similarly innocuous documents--submitted to the Commission for in camera inspection, and which purportedly represent every document relating to the lease and lease amendment, is exempt from disclosure.
17. The Commission notes that it is simply unable to understand the relationship between many of the submitted documents and the claimed exemptions, and can only speculate as why the records may or may not be exempt.
18. It is therefore generally found that the respondents have failed to establish a foundation for the exemptions they claim, and have failed to provide the Commission with a sufficient factual basis on which to base an informed judgment.
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19. With these general difficulties in mind, the Commission addresses the respondents' specific claims of exemptions below.
20. Section 1-19(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 1-15.
21. Section 1-19(b), G.S., provides in relevant part that nothing in the Freedom of Information Act requires the disclosure of:
(1) 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 ...
(4) 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 ...
(10) ... communications privileged by the attorney-client relationship ....
22. Sections 1-18a(g) and (h), G.S., define pending claims and pending litigation as follows:
(g) "Pending claim" means 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 in an appropriate forum if such relief or right is not granted.
(h) "Pending litigation" means (1) 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; (2) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (3) the agency's consideration of action to enforce or implement legal relief or a legal right.
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23. Section 1-19b(b)(1), G.S., provides in relevant part that nothing in the Freedom of Information Act shall be deemed "to limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state ...."
24. With respect to the respondents' claims of exemption under 1-19(b)(4), G.S., it is found that the respondents have not received a written notice that sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted, within the meaning of 1-18a(g), G.S.
25. It is also found that the respondents have not received a written notice that 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, within the meaning of 1-18a(h), G.S.
26. It is also found that the respondents have not been served with a complaint returnable to a court, which seeks to enforce or implement legal relief or a legal right, within the meaning of 1-18a(h), G.S.
27. It is also found that, apart from the 1992 letter threatening default, the respondents have taken no action evidencing their consideration of action to enforce or implement legal relief or a legal right, within the meaning of 1-18a(h), G.S.
28. It is found that, given the negotiation in 1993 of a lease amendment between the parties, the 1992 letter threatening default cannot reasonably be construed as current consideration of action to default the Monitor under the lease.
29. It is also found that, although there apparently remain substantial disputes between the city and Monitor, the respondents failed to prove that there are any pending claims or litigation between the city and Monitor.
30. It is also found that the respondents failed to prove how the claimed records pertain to strategy and negotiation.
31. It is therefore concluded that the respondents failed to prove that any of the requested records are exempt from disclosure pursuant to 1-19(b)(4), G.S.
32. With respect to the respondents' claim of exemption under 1-19(b)(1), G.S., it is found that the respondents failed to prove which of the submitted drafts are preliminary and which are intermediate or final.
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33. More significantly, it is found that the respondents failed to prove that either of them made a good faith determination that the public interest in withholding such documents clearly outweighs the public interest in disclosure.
34. It is therefore concluded that the respondents failed to prove that any of the requested records are exempt from disclosure under 1-19(b)(1), G.S.
35. With respect to the respondents' claims of exemption under 1-19(b)(10), G.S., it is found that the respondents failed to prove which of the claimed records were communicated in confidence, or contain any confidential information.
36. It is further found that the respondents have made no apparent effort to separate privileged communications from routine correspondence, some of which is not even addressed to or from the city's attorneys.
37. It is therefore concluded that the respondents failed to prove that any of the requested records are exempt from disclosure pursuant to 1-19(b)(10), G.S.
38. With respect to the respondents' claims of exemption under 1-19b(b), G.S., it is found that there are no administrative or judicial proceedings pending in which any party's discovery rights could be limited or even affected by the provisions of the Freedom of Information Act.
39. It is therefore concluded that the respondents failed to prove that any of the requested records are exempt from disclosure pursuant to 1-19(b)(10), G.S.
40. With respect to the respondents' claims of exemption under the attorney work-product doctrine, it is concluded that that doctrine does not state an exemption to the requirements of the Freedom of Information Act.
41. The Commission notes the respondents' concern that they are being subjected to discovery by the complainant without benefit of the protections that would be available to them in court. However, it is concluded that discovery rules may not be invoked absent litigation, and that the Freedom of Information Act is the governing law in this case.
42. The Commission also notes the respondents' concern that they have been unable to furnish sufficiently detailed evidence and explanations to prove the applicability of their claimed exemptions. However, the respondents may not shift their burden of proof simply by flooding the Commission with nearly a thousand pages of undifferentiated documents about which the Commission can only speculate as to the significance of their content and the applicability of the claimed exemptions.
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43. It is therefore concluded that the respondents violated 1-19(a), G.S., by failing to provide access to or copies of the requested records.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall forthwith provide to the complainant copies of all the documents submitted to the Commission for in camera inspection.
2. Henceforth the respondents shall strictly comply with the requirements of 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 1995.
Debra L. Rembowski
Clerk of the Commission
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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:
DWINETTE E. JOHNSON
Pepe & Hazard
Goodwin Square
Hartford, CT 06103-4302
HARTFORD CITY MANAGER AND HARTFORD CORPORATION COUNSEL
c/o Karen K. Buffkin, Esq.
Hartford Corporation Counsel's Office
550 Main Street
Hartford, CT 06103
Debra L. Rembowski
Clerk of the Commission