FIC2002-057

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Joseph McLaughlin,
		Complainants
	against		Docket #FIC 2002-057
First Selectman, Town of Greenwich,
		Respondent	May 22, 2002

The above-captioned matter was heard as a contested case on March 22, 2002, 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 §1-200(1), G.S.

2. By letter dated January 14, 2002 the complainant requested from the respondent:

a) all written legal advice or summaries of oral legal advice to the beach task force regarding the Town of Greenwich’s (hereinafter “town”or “town’s”) response to the Connecticut Supreme Court decision in Leydon v. Greenwich; and

b) all minutes and summaries of meetings of the beach task force.

3. By letter to the complainant dated January 24, 2002, the respondent advised that copies of the requested minutes would be available on January 24, 2002 at a cost of fifty cents per page. However, the respondent further advised that any legal advice given was privileged by the attorney-client relationship and would not be disclosed.

4. By letter dated February 5, 2002, the complainant reiterated his request described in paragraph 2a., above, and expanded it to include any advice given to the Greenwich Board of Selectmen (hereinafter “board”). The complainant claimed that any privilege claimed by the respondent had been waived due to the fact that the respondent had revealed information on the matter to the local newspaper.

5. Under cover letter to the complainant dated February 7, 2002, the respondent provided the complainant with a copy of a January 28, 2002 letter from Attorney Ralph G. Elliot to the respondent, and indicated that such letter was the letter he had quoted from in the local newspaper.

6. By letter to the respondent dated February 11, 2002, the complainant stated that the January 28, 2002 was not fully responsive to his requests of January 24 and February 5, 2002 and advised that he was treating the respondent’s reply as a denial of his requests.

7. By letter of complaint dated and filed on February 11, 2002, the complainant appealed to the Commission alleging that the respondent had violated the Freedom of Information (hereinafter “FOI”) Act by denying access to his January 24 and February 5, 2002 requests for copies of legal advice.

8. At the hearing on this matter, the complainant indicated that he had received the records responsive to his request described in paragraph 2a), above, concerning the beach task force minutes, and that the only issue in this matter concerns his requests for copies of legal advice, described in paragraph 2b) and 4, above.

9. The Commission takes administrative notice that in July 2001, the Connecticut Supreme Court issued its decision in Leydon v. Town of Greenwich, 257 Conn. 318 (2001) and that such decision declared unconstitutional a town ordinance that limited beach access in Greenwich to town residents.

10. It is found that following the Court’s decision in Leydon, the board appointed a task force on beach access to come up with a plan for beach access that would comport with the Leydon decision.

11. It is found that Attorney John K. Wetmore is the town attorney for the town and that Attorney Ralph G. Elliott was hired by the town to act as outside counsel in connection with the Leydon case.

12. It is found that the respondent maintains records responsive to the complainant’s requests for legal advice, either to the beach task force or to the board and that such records are public records within the meaning of §1-210(a), G.S.

13. 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….”

14. The respondent claims that the subject records are exempt from disclosure pursuant to both §1-210(b)(10), G.S., as attorney-client privileged communications and §1-210(b)(4), G.S., as records of strategy and negotiations with respect to pending claims and litigation.

15. In relevant part, §1-210(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship….”

16. In relevant part, §1-210(b)(4), G.S., permits the nondisclosure 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.”

17. The respondent submitted the subject records to the Commission for an in camera inspection at the conclusion of the March 22, 2002 hearing on this matter, which consist of five records or groupings of records, marked by the Commission as in camera document #s 2002-057-I through 2002-057-V, respectively.

18. It is found that the records submitted for in camera inspection consist of a February 7, 2002 memorandum from Attorney Wetmore to the respondent with a January 28, 2002 letter from Attorney Elliott to the respondent attached (#2002-057-I); a December 10, 2001 letter from Attorney Elliot to Attorney Wetmore (#2002-057-II); a November 28, 2001 memorandum from Attorney Wetmore to Selectman Peter Crumbine, with a November 27, 2001 letter from Attorney Elliot to Attorney Wetmore attached (#2002-057-III); a November 26, 2001 memorandum from Attorney Wetmore to the beach task force (#2002-057-IV); and a November 19, 2001 letter from Attorney Wetmore to Selectman Peter Crumbine (#2002-057-V).

19. With respect to in camera document #2002-057-I, consisting of a February 7, 2002 memorandum from Attorney Wetmore to the respondent and the January 28, 2002 letter from Attorney Elliott to the respondent, it is found that the memorandum both post-dates the complainant’s letters of request and is outside the scope of the complainant’s requests for copies of legal advice to the beach task force or board concerning the Leydon decision and is therefore not at issue in this appeal. Further, the January 28, 2002 letter was provided to the complainant, as referenced in paragraph 5, above, and is therefore also not at issue in this appeal.

20. With respect to the respondent’s claim that the subject records are exempt because they constitute attorney-client privileged communications, the applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege. That law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002). In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

21. Section 52-146r(2), defines “confidential communications” as:

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. . . .

22. The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.” Maxwell, supra at 149.

23. In addition, the Supreme Court has held that the privilege is waived when statements of the communications are made to third parties. Ullmann v. State, 240 Conn. 698, 711 (1994). However, waiver can occur only if there is knowledge of the existence of the right and intention to relinquish it. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 565 (1972); Blumenthal v. Kimber Mfg., Inc., 47 Conn. Sup. 378, 381-82 (2002). The attorney-client privilege “cannot be waived without a knowing and intentional act by the party waiving it.” Blumenthal, supra at 382.

24. The complainant maintains that the respondent cannot claim attorney-client privilege with respect to communications to the beach task force because any privilege, to the extent it exists, belongs only to the town.

25. It is found that Attorney Wetmore serves as counsel to all agencies of the town and that Attorney Elliot’s representation as outside counsel to the town in connection with the Leydon case logically extends not only to the respondent and the board, but also to other town agencies, including the beach task force. Therefore, contrary to the complainant’s assertion in paragraph 22, above, communications between the beach task force and either the town attorney or Attorney Elliott are entitled to the same protection for attorney-client privileged communications as any other agency of the town.

26. With respect to the remaining records submitted for in camera inspection, record #s 2002-057-II through 2002-057-V, inclusive, it is found that such records consist of opinion and advice provided by either Attorney Elliott or Attorney Wetmore, given in the course of their professional relationship as legal advisors, in response to specific questions or proposed plans, put forward by the respondent, the board or the beach task force. It is further found that the respondent, the board or the beach task force sought such opinions and advice in confidence.

27. It is concluded that in camera record #s 2002-057-II through 2002-057-V, inclusive, constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.

28. The complainant maintains however, that to the extent the requested records were privileged by the attorney-client relationship at one time, the respondent waived such privilege when he quoted from written communication from Attorney Elliot in an article that appeared in the local newspaper on February 5, 2002.

29. It is found that on February 5, 2002 an article appeared in the “Greenwich Comment” section of the Greenwich Time newspaper, which article was authored by the respondent, and included quoted excerpts from Attorney Elliot. It is further found that some of the quoted excerpts came from the January 28, 2002 letter provided to the complainant on February 11, 2002, wherein Attorney Elliott states in the introductory paragraph that its purpose is to help the respondent answer continuing questions from townspeople about the meaning of the Leydon decision and that he would not provide advice that could transform the letter into a confidential communication.

30. It is found that the remaining quoted excerpts in the February 5, 2002 article came from a January 31, 2002 letter from Attorney Elliott to the respondent, which letter was provided to the complainant at the hearing on the matter. The January 31, 2002 letter is apparently a revised version of the January 28, 2002 letter and is nearly identical to the January 28, 2002 letter, with the exception of some supplementary paragraphs, which are the additional quoted paragraphs that appeared in the February 5, 2002 article.

31. It is found that the information contained in the local newspaper is substantially different from the scope and nature of the information contained in the records submitted for in camera inspection. The article generally details an explanation of the factors involved in the Court’s decision, while the in camera records generally consist of advice given in response to specific questions posed by the respondent and the beach task force, prior to adopting a plan for beach access, about whether certain actions or proposed plans would comport with the Leydon decision.

32. It is found that the January 28, 2002 and January 31, 2002 letters provided to the respondent by Attorney Elliott were clearly designed to aid the town in understanding the content of the Leydon decision and were not sought or given in confidence. On the contrary, it is clear that such comments were sought and given with the intention that they would be made available to the public.

33. It is found that the respondent did not relinquish his right to claim the attorney-client privilege with respect to the information contained in the in camera records, and that he therefore did not waive the attorney-client privilege as alleged by the complainant.

34. It is concluded therefore that the subject records are permissively exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondent did not violate the disclosure provisions of §1-212(a), G.S., by failing to provide copies of in camera record #s 2002-057-II through 2002-057-V, to the complainant.

35. Having concluded that the subject records are exempt from disclosure pursuant to §1-210(b)(10), G.S., it is not necessary to consider the respondent’s claim that such records are exempt from disclosure pursuant to §1-210(b)(4), G.S.

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 May 22, 2002.

_______________________________________

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:

Joseph McLaughlin

12 Colonial Lane

Riverside, CT 06878

First Selectman,

Town of Greenwich

c/o Aamina Ahmad, Esq.

Assistant Town Attorney

101 Field Point Road, PO Box 2540

Greenwich, CT 06836-2540

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-057/FD/paj/5/23/2002