FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 31, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, contested case docket #s FIC 2004-494, William C. Abbatematteo v. Department of Law, City of Meriden, and FIC 2004-545, William C. Abbatematteo v. City Manager, City of Meriden; and Department of Law, City of Meriden, were consolidated with the above-captioned case.

           

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 September 27, 2004, the City Manager, city of Meriden (“city”) notified the complainant that an external administrative investigation (“investigation”) into the complainant’s conduct and performance as the city’s Chief of Police would be conducted immediately.

3.  It is found that, by letter dated October 14, 2004 (hereinafter “October 14, 2004 letter”), the city’s outside counsel, Pepe & Hazard LLP, retained the services of Adams and Barrett Associates, an investigation firm, to conduct the investigation.

4.  It is found that, by letter dated November 5, 2004, the complainant, through counsel, requested that the respondent provide him with an unredacted copy of the October 14, 2004 letter.

5.  It is found that, by letter dated November 12, 2004, the respondent denied the request, indicating that the redacted information was exempt from disclosure pursuant to the provisions of the Freedom of Information (“FOI”) Act.

6.  Thereafter, by letter of complaint dated November 15, 2004, and filed on November 16, 2004, and supplemented by letter dated and filed on November 17, 2004, the complainant appealed to the Commission, alleging that the respondent violated the FOI Act by denying him a copy of the following records:

a)      the October 14, 2004 letter; and

b)      any other notes, documents, correspondence and other materials that pertain to the hiring of Adams and Barrett Associates. 

7.  With respect to the records described in paragraph 6a, above, it is found that the requested record is an unredacted copy of the October 14, 2004 letter.  It is also found that the respondent provided the complainant with a copy of the unredacted October 14, 2004 letter at the hearing in this matter.

8.  The complainant contends however, that the respondent failed to promptly provide him with a copy of the unredacted October 14, 2004 letter.

9.  The respondent contends that it did not provide the complainant with an unredacted copy of the October 14, 2004 letter upon receipt of the complainant’s request because the redacted portions constituted privileged attorney-client communications.

10.  Section 1-210(a), G.S., provides:

 

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 … (3) receive a copy of such records in accordance with section 1-212. 

  11.  Section 1-212(a), G.S., further provides that: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record”.

12.  It is concluded that the October 14, 2004 letter is a public record within the meaning of §1-210(a), G.S.

13.  With respect to the claim of exemption pursuant to §1-210(b)(10), G.S., such provision permits the nondisclosure 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.  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.

 

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.  It is found that the portions of the October 14, 2004 letter that the respondent redacted constituted confidential communications transmitted within the context of the attorney-client relationship, and for the purpose of rendering legal advice.

 

18.  It is therefore concluded that the portions of the October 14, 2004 letter that the respondent redacted constituted privileged attorney-client communications, within the meaning of §1-210(b)(10), G.S., and were permissively exempt from disclosure.

 

19.  It is further concluded that the respondent did not violate the FOI Act when he denied the complainant a copy of the redacted portions of the October 14, 2004 letter.

 

20.  With respect to the allegation described in paragraph 6b, above, it is found that the complainant never made a request to the respondent for such records.  Consequently, there was no denial.

21.  It is therefore concluded that the respondent did not violate the FOI Act as alleged in the complaint. 

 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 September 28, 2005.

 

________________________________

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:

 

William C. Abbatematteo

14 Mattabassett Drive

Meriden, CT 06450

 

Department of Law,

City of Meriden 

c/o Kenneth S. Weinstock, Esq.

Pepe & Hazard LLP

Goodwin Square, 225 Asylum Street

Hartford, CT 06103-4302

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-517FD/paj/10/6/2005