The above-captioned matter was heard as a contested case on July 15, 1998, at 
which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-18a(1), G.S.

	2.  By letter dated June 30, 1998, the respondent (hereinafter “DEP”) informed 21 
homeowners at Millbrook Condominiums, East Windsor, who are the clients of the 
complainant, that their property is subject to remediation and that the DEP planned to take 
full title to same.  In that letter, the DEP also offered to purchase the homeowners’ units 
for the purchase price or fair market value as of 1995, using funds provided by 
respondents to DEP Order SRD-069, a separate administrative matter before the DEP.  
The letter provided that without universal acceptance of the offer, the DEP would 
condemn the property at fair market value as contaminated, or, in the alternative, refer the 
issue to the United States Environmental Protection Agency.  The letter imposed a 
deadline of July 17, 1998, by which the owners must accept the offer or face 
condemnation of the property. 

	3.  On July 1, 1998, the DEP announced through a press release that, by virtue of a 
funding agreement with “respondents to an existing DEP order”, the DEP planned to 
purchase 21 units at Millbrook Condominiums.   

	4.  By letter dated July 9, 1998, the complainant requested that Jeffrey Wilcox, a 
DEP employee involved in the Millbrook Condominiums matter, provide her with copies 
of any and all correspondence, minutes, notes from any meetings, and any other notes or 
memoranda from January 1, 1998, to the present related to the Millbrook Condominiums 
and “the negotiated settlement” between the DEP and the respondents in the DEP Order 
SRD-069.  

	5.   By letter dated July 9, 1998, the DEP informed the complainant that it had not 
pursued or obtained a “negotiated settlement” with the respondents to its order Order 
SRD-069.  The DEP further informed that complainant that all file materials at the desk of 
Jeffrey Wilcox would be made available for the complainant’s inspection and copying.   

	6.   By letter dated July 10, 1998, the complainant clarified her request to 
encompass all correspondence, minutes or notes or other documents that formed the basis 
for the DEP to represent that it had funding commitments from the respondents to its 
Order SRD-069.  

	7.   By letter dated and filed July 13, 1998, the complainant appealed to the 
Commission alleging that the DEP violated the Freedom of Information (“FOI”) Act by 
denying them access to the requested records.   Citing the gravity of the decision imposed 
on her clients by the DEP deadline of July 17, 1998, as described in paragraph 2, above, 
the complainant requested, and received, an expedited hearing in this matter.  

	8.   It is found that there is as of yet no written agreement which memorializes the 
funding commitment(s) described in paragraphs 2 and 3, above.

	9.   It is found that the requested records are public records within the meaning of 
§1-19(a), G.S.

	10.  Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state 
statute, all records maintained…by any public agency…shall 
be public records and every person shall have the right to 
inspect such records promptly during regular office 
hours….

	11.  At the hearing in this matter, the DEP provided the complainant with three 
sets of notes of its employees, which are responsive to the request as described in 
paragraph 6, above.  The DEP redacted from one such record information unrelated to the 
scope of the complainant’s request, as well as a portion of such record which it claimed 
was protected by the attorney-client privilege.   

	12.  At the hearing in this matter, the parties stipulated that the DEP would more 
thoroughly search through its records for other records responsive to the request 
described in paragraph 6, above, and that copies of such records would be delivered to the 
complainant on July 16, 1998, unless an exemption was claimed for such records.  The 
parties further stipulated that any such responsive records which were located and claimed 
as exempt would be delivered to the Commission for in-camera review on July 16, 1998.  

	13.  On July 16, 1998, the DEP submitted records to the Commission for in-
camera inspection, which records have been identified as in-camera document #s 1998-
180-1 - 1998-180-35, inclusive.  

	14.  The DEP contends that §1-19(b)(10), G.S., exempts the following in-camera 
document #s, or portions thereof, from mandatory disclosure:  1998-180-5, 1998-180-34, 
and 1998-180-35. 

	15.  Section 1-19(b)(10), G.S., provides that nothing in the FOI Act shall be 
construed to require disclosure of “communications privileged by the attorney-client 
relationship….”

	16.  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 (1984), cert. denied 194 Conn. 801 (1984).  

	17.  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.   The privilege is waived when 
statements of the communication are made to third parties. Id. at 711; see LaFaive v. 
DiLoreto, supra.

	18.  It is found that the redactions made to in-camera document #s 1998-180-5, 
1998-180-34, and 1998-180-35 either relate to matters outside the scope of the 
complainant’s request, or reflect confidences of a client relayed to an attorney, or advice 
deriving therefrom.

	19.  It is therefore concluded that the redacted portions of the records described in 
paragraph 18, above, are privileged communications within the meaning of §1-19(b)(10), 
G.S., or, in the alternative, are outside the scope of the complainant’s request as they 
relate to matters other than the Millbrook Condominiums.  Accordingly, it is concluded 
that the DEP did not violate §1-19(a), G.S., by failing to provide the complainant with 
access thereto. 

	20.  The DEP contends that in-camera document #s 1998-180-11 through 1998-
180-20, or portions thereof, are preliminary notes or drafts, as such, exempt from 
mandatory disclosure by virtue of §1-19(b)(1), G.S.

	21.  Section 1-19(b)(1), G.S., in relevant part states:

[n]othing in the [FOI] Act shall be construed to require 
disclosure 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….

	22.  Section 1-19(c), G.S., in relevant part states:

[n]otwithstanding the provisions of [§1-19(b)(1), G.S.] 
…disclosure shall be required of…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….

	23.  Upon inspection of in-camera document #s 1998-180-11 through 1998-180-
20, it is found that the redacted portions of such documents are preliminary notes or drafts 
within the meaning of §1-19(b)(1), G.S., and that they are not memoranda, letters, 
advisory opinions, recommendations or reports within the meaning of §1-19(c), G.S.  It is 
further found that the DEP determined that the public interest in withholding such records 
outweighs the public interest in disclosure. 

	24.  It is therefore concluded that the redacted portions of in-camera document #s 
1998-180-11 through 1998-180-20, inclusive, are exempt from disclosure under the 
provisions of §1-19(b)(1), G.S.  

	25.  It is concluded that the DEP did not violate §1-19(a), G.S., by failing to 
provide the complainant with prompt access to the redacted portions of in-camera 
document #s 1998-180-11 through 1998-180-20, inclusive.

	26.  It is found that, according to the index described in paragraph 13, above, 
copies of all in-camera document #s 1998-180-1 - 1998-180-35, inclusive, or portions 
thereof, which are within the scope of the complainant’s request, and which are not 
exempt from mandatory disclosure, have been provided to the complainant.  
 

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

	1.   The complaint is hereby dismissed.  

	2.  The Commission wishes to thank the parties and their counsel for their 
extraordinary efforts in complying with the demands placed on them by these expedited 
proceedings and for the highly professional presentation of their cases.

	Approved by Order of the Freedom of Information Commission at its regular 
meeting of August 12, 1998.

_________________________
Doris V. Luetjen
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:

Linda W. Alderman
Alderman & Alderman
One Corporate Center
Hartford, CT 06103

State of Connecticut, Department of Environmental Protection
c/o Atty. Judith A. Merrill
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120

__________________________
Doris V. Luetjen
Acting Clerk of the Commission

FIC1998-180/FD/tcg/08181998