FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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William A. Warner, |
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Complainant |
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against |
Docket #FIC 2000-278 |
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Paul
Blanchette, Jr., Chairman, Board |
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Respondents |
November 29, 2000 |
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The above-captioned matter was heard as a contested
case on July 6, 2000, at which time the complainant and the respondents
appeared 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 §1-200(1),
G.S.
2.
It is found that on
June 1, 2000 the complainant made an oral request to the respondent chairman
for a copy of the complete report generated by an investigation of the alleged
misappropriation of town funds in the Town of Thompson.
3.
It is found that the
respondent chairman denied the complainant’s request on June 1, 2000,
stating that the Thompson Board of Education voted to withhold the report
based on the advice of its attorney that the report was exempt from mandatory
disclosure as attorney-client privileged communications.
4.
By letter dated June
2, 2000 and filed on June 5, 2000, the complainant appealed to this Commission
alleging that the respondents violated the Freedom of Information (“FOI”)
Act by denying his request. The complainant requested the imposition of civil penalties
against each member of the Board of Education.
5.
Section 1-210(a), G.S.,
provides in relevant part that:
“[e]xcept
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 receive a copy of such records
in accordance with the provisions of section 1-212.
Any agency rule or regulation, or part thereof, that conflicts with the
provisions of this subsection or diminishes or curtails in any way the rights
granted by this subsection shall be void.”
6.
Section 1-212(a), G.S.,
provides in relevant part that “[a]ny person applying in writing shall
receive, promptly upon request, a plain or certified copy of any public record
. . . .”
7.
It is found that the
requested record is a public record within the meaning of §1-210(a), G.S.,
which record was submitted by the respondents to the Commission for in-camera
inspection and has been identified as in-camera document #s
FIC2000-278-01 through 2000-278-197.
8. It is found that the respondent board is represented by the law firm of Shipman and Goodwin, LLP, and sought legal advice from its attorneys, Thomas A. Mooney and Anne Littlefield, regarding the alleged misappropriation of town funds in the town of Thompson.
9. It is found that Attorney Littlefield determined that a fact-finding investigation was necessary in order to give sound and informed advice and arranged for the firm to retain the services of Decision Strategies Fairfax International (“DSFX”) to conduct the investigation.
10. It is found that at the conclusion of its investigation, DSFX reported its findings in a 196 page report which it submitted to Attorneys Mooney and Littlefield on or about March 23, 2000.
11. It is found that the report, prepared by DSFX, was used by Attorneys Mooney and Littlefield to formulate the advice they provided to the respondent board.
12. It is found that Attorney Mooney provided the respondent board with a three page summary of the report from DSFX, the report from DSFX, and the legal advice the respondent board originally sought.
13.
At the hearing on
this matter, the respondents not only maintained that the requested report is
exempt from disclosure pursuant to §1-210(b)(10), G.S., as attorney-client
privileged communications, but further argued that pursuant to §1-210(b)(1),
G.S., the requested record is also exempt as a preliminary draft.
14.
With respect to the
respondents’ argument that the records are exempt from disclosure because
they are attorney-client privileged communications, §1-210(b)(10), G.S.,
provides in relevant part that nothing in the FOI Act shall be construed to
require disclosure of “communications privileged by the attorney-client
relationship . . . .”
15.
The exemption for
attorney-client privileged communications contained in §1-210(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 advisor, except the protection may be waived.” Lafaive v. Diloreto, 2 Conn. App. 58, 65 (1984), cert. denied 194 Conn. 801 (1984).
16. 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, 240 Conn. 698, 711 (1994). The privilege is waived when statements of the communications are made to third parties. Id. at 711; see LaFaive v. DiLoreto, supra.
17. Furthermore, the Supreme Court in Shew v. Freedom of Information Commission, 245 Conn. 149, 159 (1998), ruled that communications to an attorney for a public agency are protected from disclosure by the privilege if the following conditions are met: 1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.
18. It is found that Attorneys Mooney and Littlefield acted in their professional capacities as legal advisors to the respondent board and that DSFX, in effect, worked for Shipman & Goodwin, LLP, to provide information necessary for that firm to provide legal advice to the respondent board.
19. It is found that the documents obtained by DSFX were needed to supply a basis for legal advice concerning the alleged misappropriation of funds.
20. It is further found, after review of the in-camera records, that the information contained in the report of DSFX relate directly to the fiscal activities and conduct of the town and the issue of misappropriation of funds.
21. It is therefore found that the report of DSFX relates to the legal advice sought by the respondent board.
22. It is concluded that in-camera document #s FIC2000-278-01 through 2000-278-197 are privileged communications within the meaning of §1-210(b)(10), G.S. It is further concluded that such records are exempt from mandatory disclosure by virtue of such statute and that the respondents did not violate §1-210(a), G.S., when they denied the complainant’s request for a copy of the report.
23. Having found that the records are permissibly exempt pursuant to §1-210(b)(10), G.S., it is not necessary to address the respondents’ second argument.
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.
Approved by Order of the Freedom of Information Commission at its special meeting of November 29, 2000.
___________________________________
Ann B. Gimmartino
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:
William A. Warner
P.O. Box 232
Thompson, CT 06277
Richard A. Mills, Jr., Esq.
Shipman & Goodwin LLP
One American Row
Hartford, CT 06103-2819
___________________________________
Ann B. Gimmartino
Acting Clerk of the Commission
FIC/2000-278/abg/12012000