FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Joan Coe,

Complainant

against Docket #FIC 1997-134

Alfred L. Shull, Chief of Police,

Simsbury Police Department; and Town

of Simsbury,

Respondents December 3, 1997

The above-captioned matter was heard as a contested case on September 22, 1997, at which time the complainant 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 §1-18a(1), G.S. (prior to October 1, 1997, §1-18a(a), G.S.).

2. By letter dated April 8, 1997, the complainant requested that the respondent police chief provide her with access to any and all information, all written material, recordings, tapes and transcripts or any other writing or electronically reproduced items regarding the investigation, interrogation, depositions, and final settlement of the Jim D’Agata lawsuit.

3. By letter dated April 15, 1997, the respondent chief informed the complainant that the only documents in his custody were the notice of intent to sue, the lawsuit itself, and correspondence from attorneys who handled the case for the town. Further, the respondent chief provided the complainant with access to the notice of intent to sue and lawsuit, but denied access to the correspondence based on the attorney-client privilege.

4. By letter dated April 20, 1997, and filed with the Commission on April 22, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying her access to inspect the requested

correspondence. The complainant requested imposition of a civil penalty.

Docket #FIC1997-134 Page 2

5. By letter dated April 24, 1997, the complainant reiterated her request and added a request for all information pertaining to the Simsbury Police Department criminal investigation of Mr. D’Agata, including all written material, recordings, tapes and transcripts or any other writing or electronically reproduced items generated during the investigation, interrogation, depositions, and arrest warrants resulting from this investigation (“criminal materials”). The request for the criminal materials was characterized by the complainant as a clarification of her earlier request.

6. By letter dated April 28, 1997, the respondent police chief reiterated his response to the earlier request for records and denied the complainant access to the criminal materials.

7. With respect to complainant’s April 24, 1997 request for criminal materials as described in paragraph 5, above, it is found that the Commission lacks jurisdiction over that request, because, although characterized as a clarification, the request sought a new set of documents, and thus was outside the scope of the allegations made in the complaint filed April 22, 1997.

8. The respondent contends that §1-19(b)(10), G.S., provides a basis to withhold the subject correspondence.

9. Section 1-19(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.”

10. The exemption for attorney-client privileged communications contained in §1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.

Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

11. The attorney-client privilege protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice. Ullmann v. State, 230 Conn. 698, 711 (1994). It is strictly construed because it “tends to prevent a full disclosure of the truth….” Id. at 710.

Docket #FIC1997-134 Page 3

12. After an in-camera inspection of the subject records, it is concluded that they constitute public records within the meaning of §§1-18a(5) (prior to October 1, 1997, §1-18a(d), G.S.) and 1-19(a), G.S.

13. It is also concluded on the basis of the in-camera inspection that the following portions of the records submitted for in-camera inspection are subject to the attorney-client privilege, and are therefore exempt from public disclosure under §1-19(b)(10), G.S.:

a) FIC1997-134-1; page 2; paragraph 1;

b) FIC1997-134-3; paragraph 3;

c) FIC1997-134-5; paragraph 2; sentence 2;
paragraph 4; sentences 1, 2, 4, 5, 7;
paragraph 5, sentence 1;

d) FIC1997-134-7; paragraph 3;
paragraph 4;
attachment 1; page 2; paragraph 1; sentences 1, 2;
attachment 1, page 2; paragraph 2; sentence 2;
attachment 1, page 2; paragraph 3;
attachment 1, page 2; paragraph 4;
attachment 1, page 3; paragraph 1;
attachment 2; paragraph 5;
attachment 2; paragraph 6; sentences 1, 3, 5, 6, 7, 8;
attachment 2; paragraph 7, sentence 2;
attachment 3; paragraph 3;
attachment 3; paragraph 5;
attachment 3; paragraph 7;

e) FIC1997-134-8; attachments 1 and 2, provided such attachments were never transmitted to opposing counsel, the relevant court, or other third party;

f) FIC1997-134-9; paragraph 1; sentence 4;
paragraph 2;

g) FIC1997-134-10, provided it was never transmitted to opposing counsel, the relevant court, or other third party; and

h) FIC1997-134-12; paragraph 2.

14. It is further concluded, however, that the remainder of the subject records are not privileged communications in that they either detail public facts, facts known by, or communicated to, third parties, or they carry no claim of confidentiality. Consequently, such records are not exempt from disclosure under §1-19(b)(10), G.S.


Docket #FIC1997-134 Page 4


15. It is therefore concluded that the respondents violated §1-19(a), G.S., by failing to provide the complainant with access to those portions of the requested correspondence not exempt from disclosure, as described in paragraph 14, above.

16. The commission declines to impose a civil penalty at this time. However, further violations may subject the respondent to a civil penalty.

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 the complainant with copies of the requested correspondence, more fully described in paragraph 3 of the findings, above.

2. In complying with paragraph 1 of this order, the respondents may redact those portions of the requested correspondence more fully described in paragraph 13 of the findings, above.

3. Henceforth, the respondents shall strictly comply with the provisions of §1-19(a), G.S.

Approved by Order of the Freedom of Information Commission at its special meeting of December 3, 1997.

_________________________

Doris V. Luetjen

Acting Clerk of the Commission

Docket #FIC1997-134 Page 5

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:

Joan Coe

26 Whitcomb Drive

Simsbury, CT 06070

Alfred L. Shull, Chief of Police, Simsbury Police Department; and Town of Simsbury

c/o Kevin D. O’Leary

Cummings and Lockwood

CityPlace 1, 185 Asylum Street

Hartford, CT 06103-3495

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-134/FD/tcg/12031997