FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on April 27, 2004, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2003-416, Douglas Dalena and Waterbury Republican-American v. Mayor, Borough of Naugatuck.  The record described in paragraph 8 of the findings, below, was submitted to the Commission for an in camera inspection.  No other records were offered for in camera inspection.

 

            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.  By letter of complaint received and filed on August 18, 2003, the complainant appealed to the Commission, alleging, among other matters no longer at issue, that the respondents violated the Freedom of Information (“FOI”) Act by denying his July 9, 2003 request for a copy of the “Naugatuck Police Dispatcher Investigation/Inquiry/Findings as it relates to the Falon Fox death that occurred on July 22, 2000.”   The complainant requested the imposition of a civil penalty for the respondents’ repeated violations of the FOI Act. 

 

3.  It is found that Shelley Nardozzi is a former civilian police dispatcher who was on duty the day 16-year-old Falon Fox  killed herself in a police department cell on July 22, 2000.  Nardozzi’s duties at the time included monitoring the girl in her cell. 

 

4.  It is found that the Naugatuck Police Department first assigned a supervisor to investigate Nardozzi’s conduct.

 

5.  It is found that former Naugatuck Mayor Taf later engaged attorney William L. Stevens on or about January 14, 2002, “to evaluate the investigation of Shellie [sic] Nardozzi regarding her job performance during the Falan Fox suicide at the Naugatuck Police Department in order to determine whether Ms. Nardozzi should be disciplined.”

 

6.  It is found that attorney Stevens was engaged to “investigat[e] as Mayor Joan Taf’s designee pursuant to the Union’s contract with the Borough of Naugatuck.”  Under the terms of the collective bargaining agreement with the police union, the mayor has the authority to interpret police department rules and initiate discipline against a police department employee.

 

7   It is found that a §1983 federal civil rights action was filed on July 12, 2002 by the family of the deceased girl against the Borough of Naugatuck and others.

 

8.  It is found that attorney Stevens submitted his report, which consists of a single page, to Mayor Taf on February 3, 2003.

 

9.  It is found that Stevens sent the report to Mayor Taf in confidence because, in Stevens’ words, “the matter was a personnel issue.”

 

10.  It is found that neither then Mayor Taf, nor the respondent, current Mayor Ron San Angelo (who succeeded Taf in May of 2003), acted on Stevens’ recommendation.

 

11.  It is found that the complainant requested “a copy of the Naugatuck Police Dispatcher Shelly Nardozzi Investigation/Inquiry/Findings as it relates to the Falon Fox death that occurred on July 22, 2000” on July 19, 2003.

 

12.  It is found that the respondents, through counsel, denied the complainant’s request on August 7, 2003.

 

13.  It is found that Nardozzi resigned on or about October 4, 2003.

 

14.  It is found that counsel for the respondents on or about October 17, 2003, forwarded the Stevens report to Nardozzi’s attorney, to ascertain whether Nardozzi objected to disclosure of the report.

 

15.  It is found that by letter dated October 22, 2003 to respondents’ counsel, Nardozzi’s attorney forwarded Nardozzi’s October 18, 2003 objection to the disclosure of the Stevens report, and that the respondents consequently did not disclose the report, or any other records responsive to the request, to the complainant.

 

16.  Although the respondents notified Nardozzi of the hearing on this matter, Nardozzi chose not to appear at the hearing, and no claim of personal privacy has been raised regarding the Stevens report, notwithstanding Nardozzi’s October 18, 2003 objection to disclosure.

 

17.  Section 1-200(5) 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, 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.

 

18.  Section 1-210(a) 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, 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. 

 

19.  No direct evidence was presented concerning the existence of records of the investigation of Nardozzi, other than the Stevens report.  However, given the brevity of that report, the length of time it took to produce the report, the fact that the investigation was begun by someone other than Stevens, and the terms of Stevens’ engagement, which was to evaluate the “investigation” of Nardozzi, it is found, drawing reasonable inferences from the facts before the Commission, that the respondents must have custody of records responsive to the complainant’s July 19, 2003 request other than simply the one-page Stevens report.

 

20.  It is concluded that the Stevens report, and all other records in the custody of the respondents that are responsive to the complainant’s request, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

21.  Section 1-214(b), G.S., provides in relevant part:

 

Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned….  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.  [Emphasis added.]

 

22.  It is found that the respondents did not notify Nardozzi of the request for the investigation into her conduct until approximately three months after the complainant’s request.

 

23.  It is therefore concluded that the respondents violated §1-214(b), G.S., by failing to notify the employee “immediately.”

 

24.  It is also found that an extensive line of cases before the Commission and the courts establish that disclosure of reports of  internal investigations of police misconduct does not constitute an invasion of personal privacy, except in the rare case where the misconduct does not relate to official business, and the misconduct is unsubstantiated by the investigation.  See, for example,  Department of Public Safety v. FOI Commission, 242 Conn. 79 (1997)

 

25.  The respondents also offered no evidence tending to prove that they reasonably believed that the disclosure of such records would legally constitute an invasion of privacy.

 

26.  Indeed, it is found that the respondent mayor was reported in the press as acknowledging that the Stevens report should not remain secret, but that he did not have a problem disobeying the FOI Act if doing so protected the borough in any civil lawsuit. 

 

27.  It is therefore concluded that the respondents additionally violated §1-214(b), G.S., by seeking an objection from Nardozzi when the respondents did not reasonably believe that disclosure of the Stevens report would legally constitute an invasion of privacy.

 

28.  Although at all times prior to the filing of the complaint the respondents informed the complainant that the sole reason for withholding the Stevens report was, first, the necessity of obtaining Nardozzi’s consent, and then, the fact of Nardozzi’s objection, the respondents now maintain that the report is exempt from disclosure pursuant to §§1-210(b)(10) and 1-210(b)(4), G.S.

 

29.  Section 1-210(b)(10), G.S., provides that disclosure is not required of “communications privileged by the attorney-client relationship.”

30.    Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, 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. 

31.  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. . . .

32.  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.

33.  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.

34.  It is found that attorney Stevens was engaged for the sole purpose of determining whether Nardozzi should be subject to discipline pursuant to the collective bargaining agreement between the borough of Naugatuck and the unionized employees of the police department.

 

35.  It is also found that the Stevens report, which was examined in camera, represents legal advice on the interpretation of a contract.

 

36.  However, it is concluded that the Stevens report is not exempt from disclosure pursuant to §1-210(b)(10), G.S., based on paragraph 40 below.

 

37.  The complainant maintains that the privilege was waived when the respondents disclosed the report to Nardozzi’s attorney.

 

38.  The respondents maintain that, to the contrary, there was no waiver because disclosure was made not to a third party, but to an employee of the borough, Nardozzi.

 

39.  It is found that, in the adversarial context of discipline to be imposed by the borough against Nardozzi, disclosure to Nardozzi’s attorney of the Stevens report must be considered disclosure to a third-party, particularly where the disclosure occurred after Nardozzi had resigned her employment with the borough.

 

40.  It is concluded therefore that, even if the report were protected by the attorney-client privilege, the privilege was waived when the report was disclosed to Nardozzi’s attorney.

 

41.  The respondents also maintain that the Stevens report is exempt from disclosure pursuant to §1-210(b)(4), G.S., which provides that disclosure is not required of  “[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party….”

 

            42.  In support of their position, the respondents cite Stamford v. FOI Commission, 241 Conn. 310 (1997), in which the Supreme Court concluded that an investigative report prepared for the city of Stamford was exempt from disclosure under §1-19(b)(4), G.S. [now §1-210(b)(4), G.S.], where the report evaluated the merits of a pending law suit brought by the city to recover excess sums paid under a contract, assess the city’s prospects for recovery, and evaluate settlement opportunities. 

 

43.  Section 1-200(8), G.S., defines pending claim to mean:

 

…  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.

 

44.  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.

 

45.  It is found that a federal civil rights action, filed on July 12, 2002 by the family of the deceased girl against the borough of Naugatuck and others, was pending at the time of the complainant’s request.

 

46.  However, §1-210(b)(4), G.S., provides that disclosure is nevertheless required unless the document pertains “to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party …”  [Emphasis added.]

 

47.  The Supreme Court in Stamford v. FOIC, above, at 318, cited with approval the definitions in Webster’s Third New International Dictionary of the words “strategy” and “negotiations” within the meaning of §1-210(b)(3), G.S:

 

Strategy is defined as ‘the art of devising or employing plans or stratagems.’  [Emphasis in original.]  ….  Negotiation is defined as ‘the action or process of negotiating,’ and negotiate is variously defined as: ‘to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something;’ ‘to arrange for or bring about through conference and discussion: work out or arrive at or settle upon by meeting or agreements or compromises;’ and ‘to influence successfully in a desired way by discussions and agreements or compromises.’ 

 

48.  After review in camera of the Stevens report, it is concluded that the report does not pertain to strategy or negotiations with respect to the federal civil rights action pending against the borough.  It pertains solely to the issue of whether to impose discipline pursuant to a collective bargaining agreement, and even with respect to that issue, it does not pertain to strategy or negotiation.

 

49.  It is therefore concluded that the Stevens report is not exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

50.  It is also concluded that the respondents offered no evidence to prove that any other records in their custody that are responsive to the complainant’s request are exempt from disclosure.

 

51.  It is therefore concluded that the respondents violated §1-210(a), G.S., by failing to disclose the Stevens report, and any other records in their custody that are responsive to the complainant’s request, to the complainant.

 

52.  At the conclusion of the April 27, 2004 hearing on this matter, the hearing officer permitted the parties to file post-hearing briefs.  In their May 12, 2004 brief, the respondents through their attorney, William Burns, have attached what purports to be an affidavit of Kevin McSherry, dated May 5, 2004.  The respondents rely extensively on this affidavit to support their claim that attorney Stevens was hired to provide legal advice.  However, the affidavit was never offered into evidence at the hearing on this matter.  Nor did the respondents ever request that the hearing be reopened to permit the introduction of additional evidence.  Nor have the respondents suggested why the matters referred to in the affidavit could not have been offered into evidence at the hearing, either through the testimony of the affiant or through others.  It appears that the McSherry affidavit has been submitted by the respondents in ignorance, or disregard, of the rules of evidence set forth in the Uniform Administrative Procedure Act, §§1-166, G.S. et seq.    To the extent that the attachment of the affidavit to the respondents’ post-hearing brief may be considered a motion to reopen the hearing and submit additional evidence, that motion is denied.  The McSherry affidavit is therefore not properly before the Commission, and no regard has been given to it.

 

53.  In support of his request for a civil penalty, the complainant refers the Commission to docket #FIC 2001-384, Rick Smolicz et al v. Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck.  In that case, the Commission imposed a civil penalty of $200.00 against the respondents for failure to provide access to listen to or obtain a copy of audiotapes of police commission meetings.

 

54.  Section 1-206(b)(2) provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

            55.  In paragraphs 22 through 27, of the findings, above, it was found that the   respondents failed to immediately notify the employee of the complainant’s request but the respondents had a reasonable belief that disclosure of the requested records would legally constitute an invasion of personal privacy.

 

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

 

1.  The respondents shall forthwith provide to the complainant a copy of the Stevens report, described in paragraph 8 of the findings, above.

 

2.  The respondents shall forthwith diligently search for any records in their custody responsive to the complainant’s request, and provide any such records to the complainant.  After conducting such search, the respondents shall submit an affidavit to the complainant detailing their search, including the name and title of the person or persons conducting the search, the names and locations of the offices searched, a description of the records or files within the offices that were searched, and the amount of time spent on the search.  Since it is reasonable to infer that the police department of the borough of Naugatuck investigated Nardozzi’s conduct, such search shall include, but not be limited to, the records of the police department of the borough of Naugatuck.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 11, 2004.

 

 

___________________________________

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:

 

Rick Smolicz   

33 Wilkenda Avenue

Waterbury, CT 06708

 

Ron San Angelo,

Mayor, Borough of Naugatuck;

Dennis Clisham, Chief,

Police Department, Borough of Naugatuck;

Police Department, Borough of Naugatuck;

and Borough of Naugatuck

c/o William P. Burns, Esq. and

William Ward, Esq.

Ouellette, Deganis, Gallagher & Ward, LLC

143 Main Street              

Cheshire, CT 06410

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-291/FD/paj/08/16/2004