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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Complainants |
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against |
Docket #FIC 2001-143 | |
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First Selectman, Town of Plainfield, |
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Respondent |
February 27, 2002 | |
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The
above-captioned matter was heard as a contested case on July 19, 2001, at
which time the complainant and the respondent appeared, stipulated to certain
facts and presented testimony, exhibits and argument on the complaint.
The records at issue were submitted to the Commission on October
5, 2001 for in camera inspection.
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 February 23, 2001 the complainant requested that the respondent provide him with “all billing statements for legal fees to the town of Plainfield from March 1, 2000 until present from the firms of Ryan & Satti [and] Kaplan & Brennan” (hereinafter “requested records”).
3. It is found that by letter dated March 13, 2001, counsel for the respondent denied the request indicating that there are no billing statements from Kaplan & Brennan and the other documents are exempt from disclosure pursuant to pending litigation strategy and negotiations and records relating to ongoing collective bargaining.
4. Thereafter, the complainant, by letter dated and filed with the Commission on March 13, 2001, appealed to the Commission, alleging that the respondent violated the Freedom of Information Act by denying him a copy of the requested records.
5. Section
1-200(5), G.S., provides that "public records or files" mean “any
recorded data or information relating to the conduct of the public's business
prepared, owned, used, received or retained by a public agency, or to
which a public agency is entitled to receive a copy by law or contract under
section 1-218, whether such data or
information be handwritten, typed, tape-recorded, printed, photostated,
photographed or recorded by any other method.”
6. Section 1-210(a), G.S., further provides in relevant part:
Except 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 respondent does not maintain or keep on file any billing statements from Kaplan & Brennan that are responsive to the complainant’s request.
8. It is also found that the respondent maintains billing statements in connection with the American Stop Loss Insurance case, which case was withdrawn and finally resolved during early to mid April 2001. As such case is no longer pending, counsel for the respondent represented at the hearing in this matter that no claim of exemption is being made for the billing statements in connection with that case, and that the billing statements would be provided to counsel for the complainant the day following the hearing in this matter.
9. It is found that the respondent maintains billing statements from Satti & Ryan that are responsive to the complainant’s request, and which billing statements the respondent submitted to the Commission for an in camera inspection (hereinafter “in camera records”).
10. It is concluded that the billing statements described in paragraphs 8 and 9, above, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.
11. The records submitted for in camera inspection consist of 109 pages and have been marked IC page #s 2001-143-1 through IC# 2001-143-109, inclusive, for identification purposes.
12. The in camera records contain entries that describe the work performed, the dates work was performed, the initials of the individuals who performed the work, the time/hours being billed, the corresponding dollar amounts billed, the total amount billed, previous balance, previous payments, and balance due. In addition, the first page of each billing statement contains Satti & Ryan’s letterhead, the date the billing statement was issued, and the name and address of the public agency official to whose attention the bill was submitted.
13. The respondent contends that
the information contained in the billing statements, with the exception of
specific entries for a few dates (as indicated on the Index submitted to the
Commission with the in camera records), is exempt from public
disclosure pursuant to §§1-210(b)(4), 1-210(b)(9) and 1-210(b)(10), G.S.
14. Section 1-210(b)(4), G.S.,
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”.
15. "Pending claim" is
defined at §1-200(8), G.S, as “[a] written notice to an agency which sets
forth a demand for legal relief or which asserts a legal right stating the
intention to institute an action in an appropriate forum if such relief or
right is not granted.”
16. "Pending
litigation" is defined at §1-200(9), G.S, as “[A] written notice to an
agency which sets forth a demand for legal relief or which asserts a legal
right stating the intention to institute an action before a court if such
relief or right is not granted by the agency;
(B) the service of a complaint against an agency returnable to a court
which seeks to enforce or implement legal relief or a legal right; or (C)
the agency's consideration of action to enforce or implement legal
relief or a legal right.
17. Section
1-210(b)(9), G.S., permits the nondisclosure of “[r]ecords, reports and
statements of strategy or negotiations with respect to collective bargaining.”
18. Section 1-210(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.” Such exemption 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).
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. With respect to the entries on the billing statements for which the respondent makes no claim of exemption, (as indicated on the Index submitted to the Commission with the in camera records) it is concluded that such entries should have been “promptly” disclosed to the complainant, and therefore, the respondent violated §1-210(a), G.S., by having failed to do so.
20. With respect to the entries for which the respondent claims an exemption, it is found that the following categories of information do not constitute “strategy and negotiations with respect to pending claims or pending litigation” within the meaning of §1-210(b)(4), G.S., nor do they constitute “records, reports and statements of strategy or negotiations with respect to collective bargaining” within the meaning of §1-210(b)(9), G.S., nor are they “communications privileged by the attorney-client relationship” within the meaning of §§1-210(b)(10), G.S.:
dates work was performed; time/hours spent on work performed; corresponding dollar amounts billed; total amounts billed; previous balance; previous payments; balance due; initials of the lawyer/employee who performed work; Satti & Ryan’s letterhead; dates the billing statements were issued; and the name and office address of the public agency official to whose attention the bill was submitted for payment.
21. It is therefore concluded
that the categories of information described in paragraph 20, above, are not
exempt from disclosure pursuant to §§1-210(b)(4), 1-210(b)(9) and 1-210(b)(10), G.S.
22. The final category of
information that remains to be addressed is the description of work performed.
It is found that the following
matters although pending at the time of the receipt of the complainant’s
request in February 2001, were resolved prior to the hearing in this matter:
specifically, the “highway” and “police” contracts were resolved
approximately during June and July, 2001, respectively.
It is therefore found that the descriptions of work as indicated on the
billing statements, with respect to the “highway” and “police”
contracts, no longer pertain to pending claims or litigation as such matters
have been “finally settled” within the meaning of §1-210(b)(4), G.S., and
consequently such descriptions are no longer exempt from disclosure pursuant
to §1-210(b)(4), G.S.
23. It is also found that with
respect to the respondent’s claims of exemption pursuant to §§1-210(b)(9)
and 1-210(b)(10), G.S., the respondent failed to prove that the descriptions
of work contained on the billing statements with respect to the “highway”
and “police” contracts, constitute “records, reports and
statements of strategy or negotiations with respect to collective bargaining”
within the meaning of §1-210(b)(9),
G.S., or “communications privileged by the attorney-client relationship”
within the meaning of §1-210(b)(10), G.S., and consequently those
descriptions are not exempt from disclosure pursuant to §§1-210(b)(9) and
1-210(b)(10), G.S.
24. At the hearing on this matter, the respondent indicated that the following matter is pending: Tammy S. Anderson, Zoning Enforcement Officer v. James Gallow, docket # 055145, Superior Court, Judicial District of Windham, in that the respondent intends to follow-up with further court filings following Judge Foley’s March 31, 2001 Memorandum of Decision. It is also found that the following matters are pending: two pension matters, one involving an individual named Gray and one involving an individual named Simmonds; one union contract matter referred to as “the town hall” contract; and a lawsuit involving Connecticut Yankee in which a settlement is pending; however, such settlement was not yet signed by the “dog track”.
25. With respect to the matters
described in paragraph 24, above, it is found that the respondent failed to
prove that disclosure of the descriptions contained on the billing statements
would divulge “strategy” or “negotiations” within the meaning of
§1-210(b)(4), G.S. It is also found that with respect to the respondent’s claims of
exemption pursuant to §§1-210(b)(9) and 1-210(b)(10), G.S., the respondent
failed to prove that the descriptions of work contained on the billing
statements with respect to the matters described herein, constitute “records,
reports and statements of strategy or negotiations with respect to collective
bargaining” within the meaning of
§1-210(b)(9), G.S., or “communications privileged by the attorney-client
relationship” within the meaning of §1-210(b)(10), G.S.
Consequently, it is concluded that the descriptions of work with
respect to the matters described in paragraph 24, above, are
not exempt from disclosure pursuant to §§1-210(b)(4), 1-210(b)(9) and 1-210(b)(10), G.S.
26. It is found that a few of the
entries that describe work performed contain references to a specific subject
or topic researched. It is
conceivable that disclosure of a topic researched could under certain
circumstances divulge counsel’s “strategy” or details of “negotiations.” However, it is found that with respect to those entries that
reference topics researched, the respondent failed to provide evidence at the
hearing of the specific “claim” or “litigation” that the respondent
claims is “pending”. For
example on page 1 of the in camera records (IC2001-143-1) there
is an entry that refers to a specific topic that was researched.
However, from the remaining description of the entry the matter that is
apparently being claimed as pending by the respondent is described as a “project”.
There was no evidence presented at the hearing by the respondent to
support a finding that the “project” referenced constitutes a “pending
claim” or “pending litigation” within the definition and meaning of “pending
claim” and “pending litigation” as set forth at §§1-210(b)(4), 1-200(8)
and 1-200(9), G.S. Consequently,
with respect to that entry, as well as all other similar entries, for which
the respondent failed to provide evidence of the specific claim or litigation
that is pending, it is concluded that the respondent failed to prove that
disclosure of the topics researched would disclose “strategy or negotiations”
with respect to pending claims or pending litigation, within the meaning of
§1-210(b)(4), G.S. It is also
found that even in the few instances where an entry mentions a topic
researched in connection with what could be a matter described in paragraphs
22 and 24, above, such information is so sparse that one cannot determine
whether disclosure would reveal “strategy or negotiations” with respect to
pending claims or pending litigation, within the meaning of §1-210(b)(4), G.S.,
or “records, reports and statements of strategy or negotiations with respect
to collective bargaining” within the meaning of §1-210(b)(9), G.S., or “communications
privileged by the attorney-client relationship” within the meaning of
§1-210(b)(10), G.S. Consequently,
it is concluded that the respondent failed to prove that those entries that
mention research are exempt from disclosure pursuant to §§1-210(b)(4),
1-210(b)(9) and 1-210(b)(10), G.S.
27. With respect to the respondent’s claim that numerous entries contained in the in camera records are exempt as attorney-client privileged communications pursuant to §1-210(b)(10), G.S., it is found that the respondent failed to prove that such entries reveal confidential communications between client and attorney, within the meaning of §1-210(b)(10), G.S. Consequently, it is concluded that such entries are not exempt pursuant to §1-210(b)(10), G.S.
28. Based upon the foregoing, it is concluded that the descriptions of work contained on the billing statements at issue are not exempt from disclosure and therefore, the respondent violated §1-210(a), G.S., when he failed to disclose the billing statements promptly to the complainant.
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 a copy of the in camera records.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 2002.
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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:
First Selectman
Town of Plainfield
c/o Michael E. Satti, Esq.
Satti & Ryan LLP
225 State Street, Suite 200
New London, CT 06320
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-143/FD/paj/2/28/2002