FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
George W. Sicaras,
Complainant
against Docket
#FIC 95-66
Finance Department, City of
Hartford,
Respondent January 24, 1996
The above-captioned matter was heard as a contested
case on September 28, 1995, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. The
Commission thereafter substituted the Finance Department, City of Hartford
(hereinafter "finance department") for the named respondent Hartford
Corporation Counsel (hereinafter "corporation counsel").
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1. The
respondent finance department is a public agency within the meaning of
1-18a(a), G.S.
2. By letter
dated January 21, 1995, the complainant requested from the corporation counsel:
"[C]opies of any and all invoices, bills,
insurance reimbursement, insurance claims presented by the City or its
agent(s), records of payments, and other such documents which exist concerning
the legal representation of the City by the firm of Updike, Kelly and Spellacy
of Hartford in the matter of George W. Sicaras v. The City of Hartford, Wilson
W. Gaitor, et al, Docket #CV-87-0337342-S, ... from July 1, 1987 through and
including the present day."
The complainant offered to
pay any appropriate fee for such copies not in excess of $50.00.
3. It is
found that the respondent finance department maintains records which are
responsive to the complainant's request and that such records are public
records within the meaning of 1-18a(d) and 1-19(a), G.S.
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4. It is found
that at all times material to this complaint, the corporation counsel was
acting on behalf of the respondent finance department.
5. It is
found that under cover letter dated February 6, 1995, the corporation counsel
provided the complainant with 38 pages of bills for legal services from
1990-1994, but had redacted all entries which described the legal services
provided.
6. It is
found that by letters dated February 10 and February 28, 1995, the complainant
notified the corporation counsel that he had not received records for the
period from 1987 to 1990 and that he was still seeking access to the redacted
portions of the records provided.
7. By letter
dated March 9, 1995, the corporation counsel informed the complainant that the
billing records for legal services from 1987 to 1990 were on microfilm, and
that to retrieve such records, the respondent would need to: search a computer data base containing the
index to such records; identify and locate the requested records; photocopy
such records; and then review the records and extract exempt material. The corporation counsel stated that the
complainant would be charged the hourly rate for the labor expended in
responding to his request, which was later determined to be $17.20 per hour,
plus fifty cents per page for each photocopy.
8. By letter
dated March 12, 1995, and filed on March 16, 1995, the complainant appealed to
the Commission and alleged that the corporation counsel had (1) failed to
provide him with all the records which he had requested and (2) charged
excessive fees for copies of certain records.
9. Section
1-15(a)(2), G.S., provides that the fee for a plain copy of a public record
provided by a municipal public agency shall not exceed fifty cents per page.
10. Section
1-15(b), G.S., provides that the fee for any copy of a computer-stored public
record, other than a printout, "shall not exceed the cost thereof to the
public agency."
11. It is
found, however, that the billing records from 1987-1990 are stored on microfilm
and are not computer-stored records within the meaning of 1-15(b), G.S.
12. It is
therefore concluded that the respondent finance department charged the
complainant excessive fees for copies of the requested billing records covering
the period from 1987-1990, in violation of 1-15(a)(2), G.S; and failed to
provide such records promptly, in violation of 1-19(a), G.S.
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13. With
respect to the redacted copies of billings from 1990-1994 which were provided
to the complainant, the corporation counsel submitted unredacted copies of such
records to the Commission for an in camera inspection.
14. The
respondent maintains that the descriptions of legal services are exempt from
disclosure under the attorney work-product doctrine, and pursuant to
1-19(b)(4) and 1-19(b)(10), G.S.
15. It is
found that the attorney work-product doctrine does not state an exemption to
the requirements of the Freedom of Information Act under either
1-19(a) or 1-19(b), G.S., and it is concluded therefore that the
description of services portion of the billing is not exempt from disclosure on
that basis.
16. In
pertinent part, 1-19(b)(4), G.S., permits the nondisclosure 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."
17. Section
1-18a(h), G.S., states, in material part:
"Pending litigation" means ... (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.
18. It is
found that the complainant is a former city employee and that he instituted a
legal action against the City of Hartford in 1987 concerning his pension, which
action was scheduled for trial on March 15, 1994; and that the parties reached
a settlement agreement prior to the commencement of the trial.
19. It is
further found, however, that the city filed a motion to enforce the settlement
agreement referenced in paragraph 18, above, which motion is pending in
Superior Court.
20. It is
concluded that the matters described in paragraphs 18 and 19, above, constitute
pending litigation within the meaning of 1-18a(h), G.S.
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21. The
respondent further claims that disclosure of the redacted portions of the
billing records would reveal the city's legal strategy in the pending
litigation because they contain the names of potential witnesses at trial.
22. Based
upon a review of the records submitted for in camera inspection, it is found
that portions of such records contain the names of potential witnesses but only
indicate that particular attorneys reviewed their deposition transcripts: The records do not contain any evaluations
of the substance of the transcripts or reveal which witnesses are likely to be
called.
23. It is
further found that portions of the in camera records indicate that an attorney
attended settlement negotiations or worked on a proposed settlement agreement,
but do not indicate the substance of either the negotiations or the proposed
agreement.
24. It is
concluded therefore that the redacted description of services portions of the
billing records do not pertain to either strategy or negotiations with respect
to pending litigation and therefore are not exempt from disclosure pursuant to
1-19(b)(4), G.S.
25. Section
1-19(b)(10), G.S., provides, in pertinent part, that "nothing in the
[Freedom of Information Act] shall require disclosure of ... communications
privileged by the attorney-client relationship."
26.
Connecticut's common law rule of attorney-client privilege has been
stated as follows:
The attorney-client privilege protects communications
between client and attorney when made in confidence for the purpose of seeking
or giving legal advice.
Ullman v. State, 230 Conn.
698 (1994).
27. It is
found that the in camera records do not contain any confidential communications
between the client city and its attorneys.
28. It is
concluded therefore that the subject billing records are not exempt from
disclosure pursuant to 1-19(b)(10), G.S.
29. It is
finally concluded that the respondent violated the provisions of
1-15(a) and 1-19(a), G.S., when it failed to provide the complainant
with unredacted copies of the requested billing records.
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The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
respondent shall forthwith: (a) locate
and retrieve the microfilm records of the requested legal bills from 1987-1990,
and provide the complainant with photocopies of such records; and (b) provide
the complainant with unredacted copies of the requested billing records from
1990 forward, both free of charge.
2.
Henceforth, the respondent shall strictly comply with the requirements
of 1-15(a) and 1-19(a), G.S.
3. The
Commission admonishes the respondent for attempting to charge the complainant
for its own cumbersome manner of storing public records.
Approved by Order of the
Freedom of Information Commission at its regular meeting of January 24, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-66 Page
6
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:
George W. Sicaras
46 Bay Roc Road
Wethersfield, CT 06109
Finance Department, City of
Hartford
c/o John P. Shea, Sr., Esq.
Office of the Corporation
Counsel
550 Main Street
Hartford, CT 06103
Elizabeth A. Leifert
Acting Clerk of the Commission