FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on March 16, 2004, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket# FIC 2004-088; Fred Lucas and The News-Times v. State of Connecticut, House of Representatives, Select Committee of Inquiry; Docket# FIC 2004-089; Ted Mann and The Day v. State of Connecticut, House of Representatives, Select Committee of Inquiry; and Docket# FIC 2004-090; Ken Dixon and Connecticut Post v. State of Connecticut, House of Representatives, Select Committee of Inquiry.

 

 

            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 e-mail dated February 20, 2004, and filed with the Commission on February 23, 2004, the complainants alleged that the respondent violated the Freedom of Information Act by improperly convening in executive session on February 19, 2004.   

 

3.  Section 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….

 

4.  Section 1-200(6), G.S., defines “executive session” to include:

 

…a meeting of a public agency at which the public is excluded for one or more of the following purposes: … discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

            5.  Section 1-225(f), G.S., provides that “[a] public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.”

 

6.  It is found that the respondent held a special meeting on February 19, 2004, and that the notice of such meeting indicated that the respondent anticipated entering executive session to consider “discussion of procedures proposed by Special Counsel” and “discussion of initial scope of investigation as proposed by Special Counsel.”

 

7.  It is found that, prior to entering executive session on February 19, 2004, Representative O’Neill, chairman of the respondent, announced in open session that the respondent was convening in executive session, asked that Steven Reich, counsel to the respondent, announce the reason for such session.  It is found that Mr. Reich thereupon announced that the respondent would convene in executive session pursuant to §1-200(6), G.S., to discuss public records which are exempt from mandatory disclosure because they constitute communications privileged by the attorney-client relationship.  It is further found that the members of the respondent then unanimously voted to enter executive session.    

 

            8.  It is found that the respondent discussed two documents in the executive session.  The respondent submitted copies of such documents to the Commission for in-camera inspection.  Such documents are hereby identified as IC-2004-088-089-090-093-1, which consists of a document entitled “Draft Impeachment Inquiry Procedures of the Select Committee” and IC-2004-088-089-090-093-2, which consists of a February 19, 2004 memorandum to the respondent from Steven Reich.  

 

9.  Section 1-200(5), G.S, defines “public records” to 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…”. 

 

10.  It is found that IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 are public records within the meaning of §1-200(5), G.S.

 

11.  The respondent contends that IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 are exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.

 

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

13.  Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such 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.

14.  Section 52-146r(2), G.S., 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. . . .”

Emphasis added.

15.  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.

16.  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.

            17.  The complainants contend that Attorney Reich was not admitted to practice in Connecticut on February 19, 2004, and that, therefore, the attorney-client privilege cannot attach to documents which he prepared on that date.  However, it is found that Attorney Reich was admitted to practice in Connecticut on February 19, 2004 and that he was serving as counsel to the respondent on such date.

18.  It is found that IC-2004-088-089-090-093-1 consists of a confidential record prepared by a government attorney in furtherance of the rendition of legal advice sought by the respondent, within the meaning of §52-146r(2), G.S., and that IC-2004-088-089-090-093-2 consists of written communication transmitted in confidence between the respondent and a government attorney relating to legal advice sought by the respondent, within the meaning of §52-146r(2), G.S.

19.  It is concluded that in camera record #s IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2, constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.

            20.  The complainants contend that the disclosure of three February 4, 2004 memoranda from Steven Reich to the respondent regarding “Proposed Initial Committee Rules;” “Proposed Initial Steps in the Inquiry Pursuant to H.R. 702B” and “Potential Scope of Investigation” [hereinafter “February 4^th documents”] to a member of the press was an effective waiver of the attorney-client privilege with respect to the substance of the IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2.  However, it is found that Attorney Reich prepared the February 4th documents for the respondent as part of his interview package prior to the respondent hiring him and further, that such documents differ from IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 in many respects.  It is also found that the respondent did not authorize release of the February 4^th documents to the press.  Accordingly, it is concluded that release of the February 4th documents did not waive the attorney client privilege with respect to IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2. 

 

            21.  The complainants also contend that, since the respondents always intended to disclose the in-camera documents to the public, the attorney-client privilege cannot attach to such documents, and cite several federal cases to support such position.  However, such cases involve attempts to reach attorney-client records related to either SEC or IRS mandatory filings, after the fact of such filings.  In this case, the Commission must decide whether IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 were attorney-client privileged materials before the respondent entered executive session.  It is found that there is no evidence in the record to prove that the respondent always intended to disclose IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2.  Indeed, it is found that the respondent treated such documents as confidential at the February 19^th meeting. 

 

            22.  It is found that the respondent has not released IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 to third parties, although at the conclusion of the executive session, the respondent reconvened in public session and adopted final procedures to govern its future meetings, which procedures are available to the public.  It is found that the remainder of the meeting was conducted in open session.

23.  It is found that the respondent did not waive the attorney-client privilege as alleged by the complainants.

24.  It is concluded therefore that IC-2004-088-089-090-093-1 and IC-2004-088-089-090-093-2 were permissively exempt from disclosure pursuant to §1-210(b)(10), G.S., at the time of the February 19, 2004 executive session, and that the respondent did not violate §1-225(a), G.S., by entering such session to discuss such records. 

 

 

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 April 28, 2004.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Susan Haigh and The Associated Press

c/o Cameron Stracher, Esq.

Levine Sullivan Koch & Schulz, LLP

230 Park Avenue, Suite 1160

New York, NY  10169

 

State of Connecticut,

House of Representatives,

Select Committee of Inquiry

c/o Susan Quinn Cobb, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT  06141-0120

 

Courtesy copy to:

 

Susan Haigh and The Associated Press

State Capitol

210 Capitol Avenue

Hartford, CT  06106

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2004-093/FD/abg/04/29/2004