FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
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Priya Sinha Cloutier and Connecticut Legal Services, |
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| Complainants | |||
| against | Docket #FIC 2005-276 | ||
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Commissioner, State of Connecticut, Department of Social Services, |
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| Respondent | February 22, 2006 | ||
The above-captioned matter was heard as a contested case on September 6, 2005, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. It is found that the respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated March 23, 2005 to the respondent, the complainants made a request for a copy of the following records:
a. an organizational chart for the Department of Social Services, Office of Legal Counsel, Regulations, and Administrative Hearings (OLCRAH);
b. redacted memorandum, e-mail, or other documentation discussing legal issues, on a case by case basis, by OLCRAH attorneys and Fair Hearing Officers (FHOs);
c. redacted memorandum, e-mail, or other documentation that communicate agency interpretation of legal issues by OLCRAH attorneys;
d. policy, formal or informal, regarding communications between FHOs and attorneys employed within OLCRAH; and
e. training manuals or other documentation, which describe training used by FHOs.
The complainants also requested that the respondent waive any fees associated with complying with their request.
3. By letter dated May 12, 2005 to the complainants, the respondent provided records responsive to the complainants’ request described in paragraph 2a and 2e, above, and claimed that the records requested in paragraph 2b and 2c, above, are exempt from disclosure because they are attorney-client privileged documents.
4. By letter dated June 8, 2005 and filed on June 10, 2005, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to fully comply with their March 23, 2005 request.
5. It is found that the respondent does not maintain any records responsive to the complainants’ request described in paragraph 2d, above, but did not inform the complainants in that regard until the hearing in this matter.
6. It is found that the respondent maintains records responsive to the complainants’ request described in paragraph 2b and 2c, above, and that such records are public records within the meaning of §1-210(a), G.S., (hereinafter “the subject records”).
7. Section 1-210(a), G.S., provides in relevant part that:
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 . . . receive a copy of such records in accordance with section 1-212.
8. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
9. The respondent submitted the subject records for in-camera inspection, which records have been identified as in-camera documents #s FIC 2005-276-01 through FIC 2005-276-66.
10. Section 1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “. . . communications privileged by the attorney-client relationship.”
11. 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.
12. 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. . . .”
13. 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.
14. It is found that Phillis Hyman and Patricia McCooey, attorneys who serve as counsel to the State of Connecticut Department of Social Services, authored the documents described in paragraph 9, above.
15. It is further found that all of the documents described in paragraph 9, above, were prepared for, and often at the request of, DSS FHOs to advise them on legal issues relating to their positions as FHOs.
16. It is found that the advice contained in the documents described in paragraph 9, above, was given in confidence and kept confidential.
17. It is found that in-camera document #s FIC 2005-276-01 through FIC 2005-276-36, FIC 2005-276-45 through FIC 2005-276-46, and FIC 2005-276-63 through FIC 2005-276-64 are written communications 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.
18. It is found that in-camera documents #s FIC 2005-276-37 through FIC 2005-276-44, FIC 2005-276-47 through FIC 2005-276-62, and FIC 2005-276-65 through FIC 2005-276-66 contain hand-written notes which are written communications 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 documents #s FIC 20005-276-01 through FIC 2005-276-36, FIC 2005-276-45 through FIC 2005-276-46, and FIC 2005-276-63 through FIC 2005-276-64 and the hand-written notes in in-camera documents #s FIC 2005-276-37 through FIC 2005-276-44, FIC 2005-276-47 through FIC 2005-276-62, and FIC 2005-276-65 through FIC 2005-276-66 constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S., and are exempt from mandatory disclosure.
20. Consequently, it is concluded that the respondent did not violate the disclosure provision of §1-210(a), G.S., when it denied the complainants’ request for the subject 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 February 22, 2006.
________________________________
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:
Priya Sinha Cloutier and
Connecticut Legal Services
c/o Randi Faith Mezzy, Esq.
Connecticut Legal Services
85 Central Avenue
Waterbury, CT 06702
and
Shirley Bergert, Esq.
Connecticut Legal Services
PO Box 258
872 Main Street
Willimantic, CT 06226-0258
Commissioner, State of Connecticut,
Department of Social Services
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-276FD/paj/2/28/2006