FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on December 16, 2005, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for hearing with docket numbers FIC 2005-180, Alan A. Small v. First Selectman, Town of Greenwich; FIC 2005-197, Alan A. Small v. Planning and Zoning Commission, Town of Greenwich; FIC 2005-282, Alan A. Small and Debra Small v. Planning and Zoning Commission, Town of Greenwich; and FIC 2005-307, Debra Small and Alan Small v. Board of Selectmen, Town of Greenwich.  The respondent submitted for in camera inspection the record described in paragraphs 5 and 6 of the findings, below.

 

At its regular meeting of March 22, 2006, the Commission voted not to accept the Hearing Officer’s Report dated March 9, 2006, and directed that the following Proposed Final Decision be drafted in accordance with its vote at that meeting.

 

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 of complaint filed May 13, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their requests for certain public records pertaining to legal advice.

 

3.  It is found that by letters dated April 7, 2005 and May 2, 2005, the complainants requested access to review or copy, among other records no longer at issue, “any legal opinions … related to the proposed charter change on the RTM [Representative Town Meeting] March Call as Item 5 ….” 

4.  It is found that the requested records related to resolutions separately adopted by the Greenwich Planning and Zoning commission on January 25, 2005, and the Greenwich Board of Selectmen on February 17, 2005, to change the definition of a subdivision from the division of a parcel of land into three lots to its division into two lots,  and to file a resolution with the RTM to so amend the town charter.  The effect of such a change would be to create a definition of subdivision different from that contained in state statute, see §8-18, G.S., and require property owners to receive planning approval for a “lot split” that otherwise is permitted without subdivision approval.

 

5.  It is found that on February 12, 2002 Greenwich Town Attorney’s office issued a 19-page written legal opinion to Robert Gilhuly, the Chairman of the First Selectman’s Charter Revision Committee, with a copy to First Selectman Richard Bergstresser.  A two-page May 21, 1984 internal memorandum from Assistant Town Attorney James Macauley to Town Attorney John Meerbergen was referenced and attached to the February 12, 2002 opinion.  The respondent submitted a copy of these legal opinions to the Commission for an in camera inspection.  It is found that the February 12, 2002 opinion, together with the attached memorandum, is responsive to the complainants’ request.

 

6.  It is found that, a year later, in February, 2003[1] the Greenwich Town Attorney’s office issued a written legal opinion to the First Selectman Richard Bergstresser, Selectman Penny Monahan, and Selectman Peter Crumbine, with copies to Town Planner Diane Fox, and Chairman of Planning and Zoning Commission Louisa Stone.  The respondent submitted a copy of this legal opinion to the Commission for an in camera inspection.  It is found that this opinion is responsive to the complainants’ request.

                                                                                         

7.  It is found that the respondent by letter dated May 12, 2005 denied the complainants’ request for legal opinions, asserting that they were confidential communications privileged by the attorney-client relationship, and therefore exempt from disclosure under §1-210(b)(10), G.S., and that the privilege had not been waived.

 

8.  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.

 

9.  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.    

 

10.  It is concluded that the records described in paragraphs 5 and 6 of the findings, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11. The respondent contends that the requested legal opinions 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.”

 

12.  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.

13.  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. . . .

14.  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.

15.  It is found that the opinions are written communications transmitted between public officials and employees of the town of Greenwich acting in the performance of their duties and within the scope of their employment and the Greenwich Town Attorney, relating to legal advice sought by Greenwich town officials and employees, and that the legal memorandum attached to the February 12, 2002 opinion is a record prepared by the town attorney in furtherance of the rendition of such legal advice.

16.  The complainants maintain that the respondent failed to meet his burden of proving that the February 2002 and 2003 opinions are exempt from disclosure pursuant to §1-210(b)(10), G.S., because no direct evidence was offered that the opinions were requested to be given in confidence. 

17.  In turn, the respondent argues that “[a]ny communications to the Town’s attorneys seeking legal advice … were made in complete confidence between a client and its attorneys without the expectation that they would be made public.”

18.  It is found, however, that there is no evidence that the legal opinions were in fact sought in confidence, or that there was any expectation on the part of the client that the opinions would be confidential.

19.  The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, 328-29, 341; see also State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.

20.  It is therefore concluded that the respondent failed to prove that the two opinions, together with the memorandum attached to the February 12, 2002 opinion, are confidential communications privileged by the attorney-client relationship within the meaning of §§52-146r, G.S., and 1-210(b)(10), G.S.

21.  It is further concluded that the respondent violated §1-210(a), G.S., by failing to disclose the requested legal opinions.

 

            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 the two opinion letters, including the attachment to the February 12, 2002 opinion.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 12, 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:

 

Debra Small and Alan A. Small

c/o James A. Fulton, Esq.

PO Box 2250

100 Field Point Road

Greenwich, CT 06830

 

Director, Law Department,

Town of Greenwich

c/o Aamina Ahmad, Esq.

Assistant Town Attorney

PO Box 2540

101 Field Point Road

Greenwich, CT 06836-2540

  

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-209FD/paj/4/12/2006