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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Mark Sebastian, |
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Complainants |
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against |
Docket #FIC 2001-058 | |
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First Selectman, Town |
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Respondents |
November 14, 2001 | |
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The above-captioned matter was heard as a contested case on April 6 and April 27, 2001, at which times 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 §1-200(1), G.S.
2. It is found that, by letter dated November 3, 2000, the complainant requested that the respondent provide him with copies of a number of records, including the names and addresses of all consultants, researchers, or expert witnesses engaged by the town of North Stonington or its legal counsel, to provide research, advice or consultations on tribal recognition issues or petitions to the town since January 1, 1997 and all records or information concerning fees or expenses paid to James Lynch or any other researcher, consultant, or expert retained by the town or its legal counsel for advice on tribal recognition issues or petitions since January 1, 1997 [hereinafter “the requested records”].
3. It is found that, by letter dated November 27, 2000, the respondent provided the complainant with other requested records, as well as information stating the total legal expenses paid by the town since 1996 related to the tribal recognition issue. However, it is found that the respondent denied the complainant copies of the requested records, citing §§1-210(b)(4) and (10), G.S.
4. It is found that, by letter dated December 26, 2000, the complainant, through counsel, again asked the respondent for copies of the requested records.
5. It is found that, by letter dated January 5, 2001, the respondent denied the request described in paragraph 4, above, again citing §§1-210(b)(4) and (10), G.S.
6. By notice of appeal dated January 30, 2001, and filed with the Commission on February 3, 2001, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him copies of the requested records.
7. It is found that the requested records are public records within the meaning of §1-210(a), G.S.
8. Section 1-210(a),
G.S., provides in relevant part:
“[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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212….”
9. The respondent submitted copies of the requested records to the Commission for in-camera inspection, which records have been identified as in-camera document #s 2001-058-1 through 2001-058-78, inclusive. It is found that such documents consist of typical legal bills, including the name of the client, the town of North Stonington, the dates of services, descriptions of services, including the names of the consultants, researchers, and expert witnesses, as described in paragraph 2, above, and the amounts charged for services.
10. The respondent contends that §1-210(b)(4), G.S., exempts the requested records from mandatory disclosure.
11. Section 1-210(b)(4), G.S., provides that nothing in the FOI Act shall be construed to require disclosure 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.”
12. It is found that the requested records relate to the town of North Stonington’s involvement as an interested party in the administrative proceedings before the United States Department of Interior with respect to claims for federal acknowledgement submitted to the Bureau of Indian Affairs by the Eastern Pequot Indians of Connecticut and the Pawtucket Eastern Pequot. It is found that such proceedings are subject to review by federal administrative law judges, as well as final review in federal court.
13. The complainant contends that the administrative proceedings described in paragraph 12, above, are not pending claims or pending litigation, within the meaning of the FOI Act, and cites the Commission’s final decision in Docket #FIC1993-190; Susann Viafora and Norwich Bulletin v. Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen [hereinafter “FIC1993-190”]. However, FIC1993-190 is distinguished on its facts, since there was no finding that the public agencies in such matter were parties to the Bureau of Indian Affairs proceeding.
14. It is concluded that the administrative proceedings described in paragraph 12, above, constitute “pending litigation” within the meaning of §1-200(9), G.S.
15. Upon careful review of the in-camera records described in paragraph 9, above, it is concluded that the portions of the bills describing work performed, including the names of the consultants, researchers, and expert witnesses, as described in paragraph 2, above, constitute records that pertain to strategy with respect pending litigation that has not been finally adjudicated or otherwise settled within the meaning of §1-210(b)(4), G.S. Accordingly, it is concluded that such portions of the requested records are exempt from mandatory disclosure under such provision. It is further concluded that the respondent did not violate the FOI Act by denying the complainant copies of such portions of the requested records.
16. However, it is also concluded that the remaining portions of the requested records, not specified in paragraph 15, above, are not exempt by virtue of such provision.
17. The respondents also contend that §1-210(b)(10), G.S., and §52-146r, G.S., provide bases to withhold the requested records.
18. Section 1-210(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.”
19. 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 adviser, except the protection may be waived.”
Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).
20. 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.
21. Upon careful review of the in-camera documents described in paragraph 9, above, it is concluded that such documents do not consist of confidential communications within the meaning of the attorney-client privilege exemption set forth in §1-210(b)(10), G.S. Consequently, it is further concluded that such documents are not exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.
22. Section 52-146r(b), G.S., provides in relevant part:
“[i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.”
23. Section 52-146r(a), G.S., provides in relevant part:
“(2)…Confidential communications means all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice….(3) Government attorney means a person admitted to the bar of this state and employed by a public agency or retained by a public agency or public official to provide legal advice to the public agency or a public official or employee of such public agency….”
24. Upon careful review of the in-camera documents described in paragraph 9, above, it is concluded that such documents do not consist of confidential communications within the meaning of §52-146r(a), G.S. Consequently, it is further concluded that such documents are not exempt from mandatory disclosure by virtue of §52-146r(b), G.S.
25. Accordingly, it is concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by denying the complainant copies of those portions of the requested records, as described in paragraph 16, above, which do not consist of a description of work performed.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall provide the complainant with copies of the requested records.
2. In complying with paragraph 1 of the order, the respondent may redact all information consisting of descriptions of work performed, as described in paragraph 15 of the findings, above.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 2001.
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Petrea A. Jones
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:
Mark Sebastian
c/o Robert D. Tobin, Esq.
PO Box 58
New London, CT 06320
First Selectman,
Town of North Stonington
c/o L.J. Arnold III, Esq.
138 Main Street, PO Box 310
Norwich, CT 06360
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-058/FD/paj/11/15/2001