FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Terminex International Company L.P.,
		Complainants
	against		Docket #FIC 2001-213
Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection,
		Respondents	August 22, 2001

            The above-captioned matter was heard as a contested case on June 5, 2001, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The records at issue were reviewed in camera.

           

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 by facsimile dated March 23, 2001, the complainant requested that the respondents provide it with the following records, created or received since September 1, 1998:

 

any and all documents the [respondent] Department may have relating to communications between the [respondent] Department and governmental regulatory agencies having jurisdiction or authority over the use and application of pesticides (such as, but not limited to, departments of agriculture or environmental protection, environmental conservation, environmental quality or the like) concerning or relating to the history of Terminex’s compliance with environmental laws or regulations under the jurisdiction or administration of such agencies.

 

3.  It is found that by letter dated March 28, 2001, the respondents acknowledged receipt of the request and informed the complainant that a further response, either providing documents, or a listing of documents being withheld, would be forthcoming in two to three weeks.

 

4.  It is found that by letter dated April 17, 2001, the respondents provided the complainant with access to 252 pages of records, however, the respondents informed the complainant that 55 pages of  “communication between the Office of the Attorney General and …[the respondents’] office regarding interviews with out-of-state officials are being withheld as protected under attorney-client privilege.”  The respondents further provided to the complainant, by letter dated April 26, 2001, a log for the records being withheld and indicated that the records were being withheld pursuant to §§1-210(b)(4) and (b)(10), G.S.

 

5.  By letter of complaint dated and filed with the Commission on April 27, 2001, the complainant appealed, alleging that the respondents violated the Freedom of Information Act by denying the complainant a copy of the 55 pages of records described in paragraph 4, above.

 

6.  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…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….”

 

7.  It is found that the respondents maintain the 55 pages of records at issue and such records are “public records” within the meaning of §1-210(a), G.S.

 

8.  The respondents submitted the 55 pages of records at issue to the Commission and an in camera inspection was conducted.   For identification purposes, the in camera records have been designated IC# 2001-213-1 through IC# 2001-213-55.

 

9.  It is found that IC# 2001-213-1 through IC# 2001-213-55 consist of six draft affidavits and six facsimile sheet cover pages, one cover page attached to each draft affidavit.  

 

10.  The respondents first contend that the draft affidavits and the facsimile sheet cover pages are exempt from disclosure pursuant to §1-210(b)(4), G.S., which provision permits the nondisclosure of “[r]ecords 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”. 

 

11.  [1] The respondents further contend that the facsimile sheet cover pages are also exempt from disclosure pursuant to the attorney-client privilege, set forth at §1-210(b)(10), G.S., which provision permits the nondisclosure of “[c]ommunications privileged by the attorney-client relationship.”

12.  With respect to the claim of exemption pursuant to §1-210(b)(4), G.S., it is found that the respondent department denied the complainant’s renewal of business registrations for three of the complainant’s Connecticut branch offices.  The complainant then requested a hearing pursuant to §22a-66d, G.S., (hereinafter “administrative hearing”) which administrative hearing commenced in 1999 and is currently pending.  The Office of the Attorney General represents the respondent department in that administrative hearing.  The question of the complainant’s compliance history in other states arose during the administrative hearing, and with the understanding of the parties and the hearing officer, it was decided that the respondent department would offer the testimony of out of state environmental officials by way of affidavits to avoid those officials having to travel to Connecticut.  Consequently, the Office of the Attorney General drafted certain affidavits, which are now at issue in this case, after conducting telephone interviews with the out of state officials.  Also present during the telephone interview conversations was a staff member of the respondent department.  After the affidavits were drafted, they were faxed with a cover page from the Office of the Attorney General to the respondent department’s staff member, for comment.  A copy of the affidavit was also faxed to each respective out of state official for whom such affidavit had been prepared.

13.  The respondents contend that the affidavits were never finalized nor executed and that they decided to present evidence of the complainant’s compliance history from other states in a different form.  They contend further that the choices they made about the content of the affidavits, and the phrasing of questions or statements, pertain to “strategy” within the meaning of §1-210(b)(4), G.S.

14.  The complainant, on the other hand, contends that the affidavits contain nothing more than factual information about the complainant’s compliance history in other states, and that such information would be readily available from the out of state agency’s files.  The complainant contends further that a recitation of such factual information in an affidavit form does not involve any “strategy” on the part of the respondents.

15.  It is found that the affidavits pertain to “strategy” with respect to pending claims or pending litigation within the meaning of §1-210(b)(4), G.S., because they reveal the choices and decisions made by the respondents and their counsel in the presentation of the complainant’s compliance history information.  Those choices and decisions pertain to the respondents’ and their counsel’s overall plan or strategy employed in their attempt to prevail in the pending administrative hearing.         

16.  Consequently, it is concluded that the affidavits and facsimile cover pages are exempt from disclosure pursuant to §1-210(b)(4), G.S.

 17.  With respect to respondents’ attorney-client privilege claim in connection with the facsimile cover pages, it is found that such privilege 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).

 18.  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. 

19.  It is found that the facsimile cover pages are exempt from disclosure pursuant to the attorney-client privilege, because they are confidential communications between attorney and client in the context of the giving of legal advice.  It is also found that the privilege was not waived with respect to the facsimile cover pages.

 

20.  It is therefore concluded that the respondents did not violate §1-210(a), G.S., when they failed to provide the complainant with a copy of the in camera records.

 

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 regular meeting of August 22, 2001.

 

 

_________________________________________

Dolores E. Tarnowski

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:

 

Terminex International Company L.P.

c/o Thomas F. Harrison, Esq.

Day, Berry & Howard LLP

City Place I

Hartford, CT  06103-3499

 

Commissioner, State of Connecticut,

Department of Environmental Protection;

and State of Connecticut, Department of

Environmental Protection

c/o Krista E. Trousdale, Esq.

Assistant Attorney General

55 Elm Street, P.O. Box 120

Hartford, CT  06141-0120

 

 

________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2001-213/FD/mes/08/24/2001