FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on March 12, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondent submitted for in camera inspection the record described in paragraphs 4 and 5 of the findings, below.

 

            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 letter filed September 18, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for certain public records.

 

3.  It is found that by letters dated July 1, 2003 and September 1, 2003, the complainant requested, among other records no longer at issue, copies of “legal fee bills and/or statements of Jackson Lewis for each calendar quarter and/or month in 2002 and 2003.”

 

4.  It is found that the Jackson Lewis law firm provided legal services for the respondent, and that the respondent received invoices for those services covering the period January 2002 through August 2003.

 

5.  It is found that the invoices include the date of the service provided, the attorney providing the service, the hours of service provided, a general description of the service provided, the rate at which services were billed, and the total amount due.  No invoices for the months of November and December 2002, and January and February

2003 were submitted to the Commission, and the respondent has represented that no invoices exist for those months.

           

6.  It is found that the respondent on August 8, 2003 provided the complainant with copies of the invoices for March and April 2003, and February through August 2002, but with information concerning the descriptions of services, dates of services, hours of services, and attorney providing the services, all redacted on each invoice.

 

            7.  It is found that, by letter to the respondent dated August 28, 2003, the complainant protested both the redaction of the invoices provided, and the fact that no invoices were provided reflecting services rendered in January 2002, September through December 2002, and January, February, May and June 2003.

 

8.  It is found that the complainant repeated his August 8, 2003 request at a September 3, 2003 collective bargaining session with the respondent, and also by letter dated September 11, 2003 to the respondent.

 

9.  It is found that the respondent provided no further records responsive to the complainant’s request.

 

10.  Section 1-200(5), G.S., provides:

 

“Public records or files” means 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.

 

11.  Section 1-210(a), G.S., 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.    

 

12.  It is concluded that the records described in paragraphs 4 and 5, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13. The respondent contends that the redacted portions of the invoices are exempt from disclosure pursuant to §1-210(b)(10), G.S., which provides that disclosure is not required of “communications privileged by the attorney-client relationship.”

 

14.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  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.

15.  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. . . .

16.  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.

17.  Other than submitting the records for an in camera inspection, the respondent did not present any additional evidence in support of its position that the records are privileged, and did not identify any particular portions of the records that it believes are privileged.

18.  In Maxwell v. FOIC, 01-CBAR-0383 (Docket Number CV99-0497390-S, Superior Court, J.D. of New Britain, Memorandum of Decision dated February 15, 2001 [Wiese, J.]),affirmed, Maxwell v. FOIC, 260 Conn. 143 (2002), the superior court concluded that an agency failed to sustain its burden of proof by claiming, as the respondent does here, that every portion of every billing record is categorically privileged.

19.  The respondent argues that it is the responsibility of the hearing officer and Commission to parse the in camera records and redact those portions that are exempt from disclosure.

20.  It is concluded, however, that it is the respondent’s burden to prove the applicability of an exemption.  Maxwell v. FOIC, supra; see also Maher v. FOIC, 192 Conn. 310, 315 (1984).  Without the respondent pointing to specific portions of the records that might be privileged, or offering any evidence in support of its claim of privilege, the Commission has little if any basis for concluding what portions of the records might be privileged.

21.  The respondent further maintains that it is not necessary for it to identify specific portions of the bills that are exempt from disclosure, because, it argues, it may permissibly delete all the details concerning the nature of the service performed, relying on Frank A. Iennaco v. Raymond Munn et al., Docket #FIC 1999-139.

 

22.  Iennaco v. Munn, above, reflects a voluntary agreement of the parties, in which the complainant agreed to withdraw his complaint in exchange for receiving redacted records.   

 

23.  It is concluded that no substantive precedent was established in Iennaco v. Munn, above, since the complaint was withdrawn and the Commission made no decision on the substantive issue of attorney-client privilege.

 

24.  It is concluded that the terms of the stipulated agreement of the parties in Iennaco v. Munn, above, do not establish precedent for this case. 

 

25. The respondent also maintains that it may delete all the details concerning the nature of the service performed, citing  New Haven v. FOIC, 4 Conn. App. 216 (1985).

 

26.  Specifically, the respondent argues in its brief that, in New Haven, supra,

 

the Court stated: The respondents may delete from the billings those portions which identify specific individuals, parties and cases.  However, the respondents shall not delete the number of billing hours shown and general subject matter designations such as, but not limited to, ‘research,’ ‘interviews’ or ‘court appearance.’  (Respondent’s brief at 4.)

 

27.  However, the respondent has neglected to observe that, in the language it quotes above, the Appellate Court was, in its description of the facts and procedural history of the case, simply reciting the Commission’s order in that case, and the court was clearly not itself deciding which portions of the records were exempt from disclosure. 

 

28.  It is concluded, that the fact that the Commission permitted redaction in the 1982 New Haven case does not require the Commission now to permit redaction in every case, particularly where the respondent has failed to prove the applicability of an exemption, and where the only claim by the respondent is that there should be a blanket redaction of all descriptions of services, a claim specifically rejected in Maxwell v. FOIC, supra.

29.  After an in camera examination of the records, it is found that the redacted portions of the requested records are general descriptions of tasks, consisting typically of a dozen words or less for each service rendered, and do not contain any legal advice. 

30.  It is also found that the redacted portions of the requested records were not prepared in furtherance of the rendition of legal advice, but rather in furtherance of the collection of fees, by describing the service for which the fee is sought to be collected.

31.  It is concluded that the respondent failed to prove that the 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 and a government attorney relating to legal advice sought by the public agency.  Nor did the respondent prove that the redacted portions of the requested records were prepared by an attorney in furtherance of the rendition of legal advice.

32.  It is concluded that no portions of the billing invoices are exempt from disclosure by virtue of §1-210(b)(10), G.S. 

 

33.  In its index of records submitted for in camera inspection, the respondent has claimed exemption under §1-210(b)(4), G.S., for the entirety of in camera records pages 19 through 22, and pages 24 through 26.

 

34.  Section 1-210(b)(4), G.S., provides that disclosure is not required 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….

 

35.  However, it is found that the respondent offered no evidence of any pending claims or litigation at the hearing on this matter.  While an inspection of the in camera records themselves suggests the possibility of a claim within the meaning of §1-210(b)(4), G.S., it is found that such a suggestion does not satisfy the respondent’s burden of proof.  Additionally, as with its claim of exemption under §1-210(b)(10), G.S., the respondent has not identified the specific lines that it believes would disclose “strategy and negotiations” with respect to any such possible claims or litigation.  As indicated in the findings, above, it is the respondent’s burden, not the Commission’s, to demonstrate which portions of the records are exempt, and a blanket claim of exemption does not satisfy the respondent’s burden of proof.  See Maxwell v. FOIC, supra.

 

36.  It is therefore concluded that the respondent failed to prove which portions of the requested records are exempt from disclosure under §1-210(b)(4), G.S.

 

37.  It is therefore concluded that the respondent violated §1-210(a), G.S., when it failed to provide the complainant with unredacted copies of the requested records. 

 

 

 

            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 an unredacted copy of the records described in paragraphs 4 and 5 of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 25, 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:

 

Joseph Mayhew          

c/o Ellen Dichner, Esq.

Gladstein, Reif & Meginniss, LLP

817 Broadway, 6^th floor

New York, NY 10003

 

Connecticut Student Loan Foundation

c/o R. Richard Croce, Esq.

525 Brook Street

Rocky Hill, CT 06067

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-345/FD/paj/08/30/2004