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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Gale Courey Toensing and Waterbury Republican, |
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Complainants |
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against |
Docket #FIC 2001-455 | |
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Superintendent
of Schools, Regional
School District One; and
Board of Education, Regional School District One, |
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Respondents |
January 23, 2002 | |
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The above-captioned matter was heard as a contested
case on October 30, 2001, at which time the complainants and the respondents
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 respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that, by letter dated September 28, 2001, the complainants requested that the respondent superintendent provide them with a copy of documents relating to attorney Thomas Sullivan’s opinion with respect to the adequacy of a two-thirds majority vote of the respondent board.
3. It is found that the only document that the respondent superintendent keeps on file or maintains that is responsive to the request described in paragraph 2, above, is a September 27, 2001 letter from Attorney Sullivan to the respondent superintendent [hereinafter “the letter”].
4. It is found that, during an October 2, 2001, meeting of the respondent board, such board entered into executive session to discuss the letter and that the agenda for such meeting listed such item as “discussion of written legal opinion from the Board of Education’s Legal Counsel protected by the attorney/client privilege (executive session anticipated).”
5. By letter dated and filed on October 3, 2001, the complainants appealed to this Commission alleging that the respondent superintendent violated the Freedom of Information [hereinafter (“FOI”] Act by denying them a copy of the letter, and that the respondent board violated the FOI Act by improperly entering the executive session described in paragraph 4, above.
6. With respect to the allegation against the respondent superintendent, §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….
7. 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 . . . .”
8. It is found that the letter is a public record within the meaning of §§1-210(a) and 1-212(a), G.S. The respondents submitted a copy of the letter to the Commission for in-camera inspection, which document has been identified as in-camera document #FIC2001-455-1.
9. The respondents contend that the letter is exempt from mandatory disclosure by virtue §1-210(b)(10), G.S., which provides that nothing in the FOI Act shall be construed to require disclosure of “communications privileged by the attorney-client relationship . . . .”
10. The exemption for attorney-client privilege 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).
11. 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.
12. Upon careful inspection of in-camera document # FIC2001-455-1, it is found that such record constitutes an opinion or advice sought by the respondents and provided in confidence by the respondents’ attorney to the respondent superintendent, and that such record is a communication between attorney, in the capacity of legal advisor, and client, and contains legal advice.
13. It is concluded that in-camera document # FIC2001-455-1 is a privileged communication within the meaning of §1-210(b)(10), G.S. It is further concluded that such record is exempt from mandatory disclosure by virtue of such statute and that the respondent superintendent did not violate §§1-210(a) and 1-212(a), G.S., when he denied the complainants’ request for a copy of such record.
14. With respect to the allegation against the respondent board, §1-225(a), G.S., provides, in relevant part that “[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public….”
15. Section 1-200(6)(E), G.S., defines “executive session” to include: