FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on August 6, 2002, at which time the complainant and the respondents appeared, stipulated to certain facts and presented 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 April 5, 2002, the complainant requested that the respondents provide it with copies of any and all invoices, bills, statements for services, or other requests for payment sent to the town or any town agency or employee on or after October 1, 2000 by Robinson & Cole, LLP; Timothy Bates, Esq.; Bartinik, Gianacoplos, Bartinik, Bartinik & Grater, P.C.; Zeldes, Needle & Cooper PC, Sousa & Stone P.C.; Leggette, Brashears & Graham; Penelope Sharp, and George Boath [hereinafter “the requested records”]. 

 

3.  By letter dated and filed May 9, 2002, the complainant appealed to the Commission, alleging that the respondents had violated the Freedom of Information [hereinafter “FOI”] Act by failing to comply with its request for the requested records.

 

4.  It is found that, by oral agreement of the parties, the respondents were given time to search for the requested records and that, under cover letters dated May 9, 2002 and May 22, 2002, the respondents provided the complainant with the requested records, but redacted certain information from some such records.  At the hearing in this matter, the complainant alleged that such redactions are in violation of the FOI Act; accordingly, such redactions are now the subject of this complaint.

 

5.  It is found that the requested records are public records within the meaning of §1-210(a), G.S.

 

6.  Section 1-210(a), GH.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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

7.  The respondents submitted copies of the requested records to the Commission for in-camera inspection, which records have been identified as in-camera document #s 2002-213-1 through 2002-213-118, inclusive.  It is found that such documents consist of standard legal and consultant bills, including the name of the client, the dates of services, descriptions of services, including the names of the consultants, and the amounts charged for services.  It is found that the majority of the bills have been provided to the complainant, but that certain redactions, typically consisting of a few words on a bill, were made prior to providing such bills to the complainant. 

 

8.  The respondents contend that the attorney work product rule exempts all but one redaction in the requested records. 

            9.  However, it is concluded that the attorney work product rule does not constitute an exemption under the FOI Act and that such rule therefore does not provide a basis to withhold the redacted portions of the requested records. 

10.  The respondent contends that §1-210(b)(4), G.S., exempts the redacted portions of 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.  Section 1-200(9), G.S., defines “pending litigation” to mean “(A)  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.”

 

            13.  It is found that the complainant filed two civil actions against the Town of Stratford, in December 2001 and in January 2002.  It is further found that both actions were pending at the time of the request described in paragraph 2, above, as well as at the hearing in this matter. 

 

            14.  It is found that the lawsuits described in paragraph 13, 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 7, above, it is found that the majority of such records predate the litigation described in paragraph 13, above.  Accordingly, it is concluded that all such records, which predate such litigation, are not exempt from mandatory disclosure by virtue of §1-210(b)(4), G.S. 

 

            16.  It is also found, however, upon careful review of the in-camera records described in paragraph 7, that the redactions contained in 2002-213-023, 2002-213-025 and 2002-213-059 and 2002-213-064, constitute records that pertain to strategy with respect pending litigation described in paragraph 13, above, 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 respondents did not violate the FOI Act by denying the complainant copies of such portions of the requested records. 

 

            17.  The respondents also contend that §1-210(b)(10), G.S., provides a basis 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 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.

20.  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. . . .

21.  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.

22.  It is found that the respondents failed to prove that the remaining redacted portions of the requested records constitute or pertain to 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.  Nor did the respondents prove that the remaining portions of the requested records were prepared by an attorney in furtherance of the rendition of legal advice.  Accordingly, it is concluded that such portions are not exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S. 

            23.  It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., when they failed to provide the complainant with redacted portions of the requested records, except 2002-213-023, 2002-213-025 and 2002-213-059 and 2002-213-064. 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

            1.  Forthwith, the respondents shall provide the complainant with copies of the requested records, without redactions, except for 2002-213-023, 2002-213-025 and 2002-213-059 and 2002-213-064, at no cost.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

April 23, 2003.

 

 

_______________________________________

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:

 

AvalonBay Communities, Inc.

c/o Amy E. Souchuns, Esq.

Shipman & Goodwin LLP

One American Row

Hartford, CT  06103-2819

 

Town Clerk, Town of Stratford;

Chairman, Finance and Claims

Committee, Town of Stratford;

and Town of Stratford

c/o Kevin C. Kelly, Esq.

Zeldes, Needle & Cooper

P.O. Box 1740

Bridgeport, CT  06601-1740

 

 

 

_______________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

 

FIC/2002-213/FD/abg/04/25/2003