FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 29, 2007, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A Report of Hearing Officer, dated January 23, 2008, was considered, but not adopted, by the Commission at its regular meeting on February 13, 2008.  The Commission, at such meeting, voted to reopen the hearing in this matter, and such hearing was held on March 20, 2008.   The respondent appeared at the March 20, 2008 hearing to present additional evidence, but the complainant did not appear.

           

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 April 30, 2007, the complainants requested that the respondent make the following records available to them for inspection:

 

a.       “Documents supporting [all] town expenditures pertaining to the May 2003 Settlement Agreement between the Board of Selectmen (the Board) and Eureka V, LLC (Eureka) and its subsequent amendments…These documents should include, but are not limited to, legal fees itemized by date, billable hours, and description of services performed.”

 

b.      “Copies of any and all transcripts pertaining to an action entitled Eureka v. Town of Ridgefield, Docket No. 3 02 CV 356 (DJS).  These would include depositions, pleading [sic], briefs, court orders; and any other documents issued by or submitted to the court pertaining to this action to date.”

 

c.       “A full and complete accounting of the expenditures charged against the $11,600,000 appropriation approved by the electors of Ridgefield on September 25, 2001….We wish to see an accounting of all expenditures made under this appropriation from September, 2001 to date, including supporting documents describing the expenses incurred, and indicating the funds remaining in this appropriation.  Supporting documents should be made available for our inspection.”

 

d.       “All correspondence, including but not limited to email, to and/or from the Board and Eureka and its agents and representatives pertaining to [i] the Settlement Agreement… and [ii] the above referenced legal action.”

 

3.  It is found that, by letter dated May 4, 2007, the respondent addressed each of the four requests to inspect records, as follows:

 

a.       “[With regard to the request in 2.a, above], [t]own [a]ttorney, Cohen and Wolf, P.C., is in the process of reviewing records for responsive information and to determine whether they constitute privileged communications or contain other information not required to be disclosed under the [Freedom of Information] (FOI) Act.  Once that process is complete, we will let you know and make available for your inspection any responsive information that is neither privileged nor otherwise protected from disclosure under the [FOI] Act.”

 

b.      “[With regard to the request in 2.b, above], the deposition transcripts are stored at the offices of Cohen and Wolf, P.C…..Please call Victoria Schneider …to schedule an appointment to view those documents.  Please understand that the transcripts will have to be reviewed for privileged communications or other information not required to be disclosed under the [FOI] Act.  If you intended to request an inspection of the complete court file, you may do so during the office hours at the … United States District Court for the District of Connecticut.  There, you may inspect and request copies of documents at your convenience.”

 

c.       “[With regard to the request in 2.c, above], the [t]own is processing your request and will let you know as soon as any accounting is located and available for inspection.  With respect to supporting documents, if any, they will be made available for inspection, once they have been reviewed to determine whether they constitute privileged communications or contain other information not required to be disclosed under the [FOI] Act.”

           

d.  “[With regard to the request in 2.d., above], [a]ll correspondence pertaining to the Settlement Agreement are excluded from disclosure under the [FOI] Act.  See Conn. Gen. Stat. §1-210(b)(4).  All non-privileged correspondence that does not pertain to settlement or negotiations between the parties will be made available to you.  We are in the process of reviewing those documents to comply with your request.  We will contact you as soon as we can make those records, if any, available.”

 

            4.  By letter dated May 25, 2007 and filed May 30, 2007, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying them access to the records described in paragraph 2, above. 

           

5.      Section 1-200(5), G.S., provides, in relevant part:

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

6.      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….

 

7.  It is found that the requested records, to the extent they are maintained by the respondent, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

8.  It is found that, by letter dated May 25, 2007, the respondent provided the complainants with an additional “response to [their] FOI request dated April 30, 2007.”  Specifically, the respondent stated:

 

a.       “[With regard] to the [request in 2.a, above], there were no expenditures other than legal fees, which are part of the budgetary breakdown cover sheet that is attached per your request #3.”

 

b.      “[With regard to the request in 2.b, above], the deposition transcripts are stored at the offices of Cohen and Wolf, PC….Please contact Victoria Schneider… to schedule an appointment to review those documents.  Please understand that the transcripts will have to be reviewed for privileged communications or other information not required to be disclosed under the [FOI] Act.  If you intended to request an inspection of the complete court file, you may do so during office hours at … the United States District Court in Hartford.  There you may inspect and request copies of documents at your convenience.”

 

c.       “[With regard to the request in 2.c], above, enclosed is an accounting of the expenditures charged against the 11,600,000 appropriation approved by the electors of Ridgefield on September 25, 2001.  Any further detail will involve a retrieval of microfiche information at an additional cost.  Please notify us if you would like us to estimate the cost needed for retrieval.”

 

d.      “[With regard to the request in 2.d, above], [a]ll correspondence pertaining to the Settlement Agreement is excluded from disclosure under the [FOI] Act.  See Conn. Gen. Stat. §1-210(b)(4).”

 

            9.  It is found that, on August 6, 2007, the complainants, for the first time, telephoned the office of the town’s attorney, and spoke with Attorney Monte Frank regarding their request to view the deposition transcripts, described in paragraph 2.b, above.  By letter dated August 10, 2007, the respondent, through counsel, confirmed that the complainants would “let [Attorney Frank] know which transcripts [they] wanted to inspect” and “once you respond, this office will be able to make the transcripts available to you ….”

 

10.  It is found that, in the August 10, 2007 letter, the respondent further stated that “[b]y letter dated May 25, 2007, the town complied with” the requests described in paragraphs 2.a, 2.c, and 2.d, above. 

 

11.  It is found that, by letter dated August 22, 2007, the respondent, through counsel, offered to provide the complainants, in response to their request described in paragraph 2.a, above, with copies of the bills paid by the town to its attorneys “which will be redacted, as some, if not all, of the descriptions are protected by the attorney/client and/or work product privileges and are thus exempt from disclosure pursuant to [§]1-210(b)(10) of the FOIA.”

 

12.  It is found that, as of the date of the hearing in this matter, the respondent had not provided the complainants with redacted copies of the records described in paragraph 2.a, above.

 

13. With regard to the request described in paragraph 2.a, above, it is found that the respondent, in providing a “budgetary breakdown cover sheet,” described in paragraph 8.a, above, did not provide the “documents supporting” the expenditures at issue, such as the attorney billing records, as requested.   

 

            14.  At the hearing in this matter, the hearing officer ordered the respondent to submit, for in camera inspection, copies of the attorney billing records described in paragraph 2.a, above.

 

            15.  On September 13, 2007, the respondent submitted the records for in camera inspection.  Such records shall be identified as IC 2007-320-001 through IC 2007-320-294, herein. 

           

16.  The respondent contends, first, that the following records, or portions thereof, are exempt from disclosure pursuant to §1-210(b)(4), G.S.:  IC 2007-320-32 (lines 24 and 27), IC 2007-320-34 (line 35), IC 2007-320-36 (lines 17 and 22), IC 2007-320-38 (lines 19 and 21), IC 2007-320-39 (line 6), IC 2007-320-40 (line 17), IC 2007-320-41 (line 18), IC 2007-320-42 (line 20), IC 2007-320-43 (lines 14, 18, 25, 27, 29, and 30), IC 2007-320-44 (lines 6 and 16), IC 2007-320-45 (line 19 through 21), IC 2007-320-46 (lines 11, 12, 22, 24 through 26, 28 and 29), IC 2007-320-47 (lines 5, 7, 8, 10, 14 through 17, 21, 23 through 25), IC 2007-320-48 (lines 24, 25, 27 and 28), IC 2007-320-49 (lines 7, 8 and 10), IC 2007-320-50 (lines 14, 21, 28, and 33), IC 2007-320-52 (lines 14 and 20), IC 2007-320-55 (line 36), IC 2007-320-59 (line 22), IC 2007-320-60 (line 10), IC 2007-320-64 (lines 15, 16, 21, 22, 24 through 31, and 33), IC 2007-320-65 (line 14), IC 2007-320-66 (lines 11 through 13), IC 2007-320-68 (lines 12 and 13), IC 2007-320-69 (lines 11, 16, 18, 24, 33), IC 2007-320-70 (lines 10, and 12 through 14), IC 2007-320-72  (lines 34 and 35), IC 2007-320-73 (lines 29 and 30), IC 2007-320-76 (line 33), IC 2007-320-77 (lines 36 and 38), IC 2007-320-78 (line 18), IC 2007-320-80 (lines 23 through 25 and 27), IC 2007-320-88 (lines 11 and 20), IC 2007-320-89 (lines 10, 21 through 24 and 27), IC 2007-320-90 (lines 12, 24 through 28, 30 through 36, and 38 through 40), IC 2007-320-93 (lines 12 and 27), IC 2007-320-94 (lines 12, 20, 21, and 28), IC 2007-320-95 (lines 24 through 26, 32 and 33), IC 2007-320-96 (line 21), IC 2007-320-97 (lines 11 through 13, 18, 19, 23, 27, 28 and 34 through 38), IC 2007-320-98 (lines 13 through 15 and 19 through 22), IC 2007-320-99 (line 17), IC 2007-320-102 (lines 17, 18 and 35), IC 2007-320-104 (lines 28, 29, 30), IC 2007-320-105 (lines 14 through 16, 25, 26, and 28 through 32), IC 2007-320-106 (lines 31, 37 and 38), IC 2007-320-107 (lines 11 through 13, 23, 24, 26 and 27), IC 2007-320-108 (lines 13 through 15, 25 through 27, and 29 through 31), IC 2007-320-109 (lines 18 through 20, and 29), IC 2007-320-110 (lines 13, 15, 27, 29 through 31, 33 through 35, and 37 through 39), IC 2007-320-111 (lines 11, 35, 37, and 38), IC 2007-320-114 lines 13, 22 through 24, 26 30, 31, 33, 34, and 36), IC 2007-320-115 (lines 10 through 12, 14 through 16, 20, 21, 23, and 37 through 39), IC 2007-320-116 (lines 11 through 14, 32 through 34, and 36), IC 2007-320-117 (lines 10, 18, 20, 22, 24, and 26 through 29), IC 2007-320-118 (lines 10, 11, 21, 29 through 31, 33 and 34), IC 2007-320-119 (lines 16 through 19, 21, 25, 27 through 39, 41, 43), IC 2007-320-120 (lines 10, 18, 28 through 32, and 34 through 39), IC 2007-320-121 (lines 11 through 27, 33, 34 through 36, 38, 39, 43 and 44), IC 2007-320-122 (lines 15 through 18, 20 and 32 through 34), IC 2007-320-123 (line 33), IC 2007-320-124 (lines 29 through 31), IC 2007-320-125 (line 16), IC 2007-320-126 (lines 11 through 13, 28, 30 through 34, 39 through 42), IC 2007-320-127 (lines 12 and 13), IC 2007-320-129 (lines 29 through 34), IC 2007-320-130 (lines 10, 17 through 19, 22 through 29, 34, 35, and 38 through 40), IC 2007-320-131 (lines 18, 21, 25 through 29, 31 and 32), IC 2007-320-132 (lines 18 through 21, and 34), IC 2007-320-133 (lines 13, 33 and 34), IC 2007-320-134 (lines 11, 15 through 17, 22, and 23), IC 2007-320-135 (lines 14, 23, and 24), IC 2007-320-136 (lines 36 through 40), IC 2007-320-137 (lines 10, 11, 25, 26, and 28), IC 2007-320-138 (lines 11, 12, 26 through 28, and 34), IC 2007-320-139 (lines 12 and 13), IC 2007-320-140 (lines 10, 14, 15, 19 through 21, 23 through 29, and 36 through 39), IC 2007-320-141 (lines 19 through 21, 25 through 33, and 38 through 40), IC 2007-320-142  (lines 11 through 13, 20 through 22, 28 through 33, 37 through 40), IC 2007-320-143 (lines 10, 11, and 15), IC 2007-320-145[1] (lines 24 through 26), IC 2007-320-148 (lines 15, 20, 21, 25, 26, 28, 29, 34, 35, 39, and 40), IC 2007-320-149 (lines 15, 16, 20 through 22, 24 through 26, 35 through 38, 40, and 41), IC 2007-320-150 (lines 14, 15, 17, 33, and 35 through 36), IC 2007-320-151 (lines 18, 19, 27 through 33, 35, 38), IC 2007-320-152 (lines 12 through 14), IC 2007-320-153 (lines 10 through 15), IC 2007-320-154 (lines 10 through 14, 21 24 through 26, 28 and 29), IC 2007-320-155 (lines 13 through 19, 21, 23, 24, 28, 30, 31, and 35 through 37), IC 2007-320-156 (lines 26 through 28, 32, 34, 36, and 37), IC 2007-320-157 (lines 10, 11, 30 through 35, 40, and 42), IC 2007-320-158 (lines 10, 11, 13, 14, 30 through 32, and 34 through 36), IC 2007-320-159 (lines 15, 16, 18, 23 through 25), IC 2007-320-161 (lines 14 through 16, 28, and 29), IC 2007-320-162 (lines 19, 25 through 27, 31, 32, 34, and 35), IC 2007-320-163 (lines 15, 30, 31, 33, 35, and 36), IC 2007-320-164 (line 14), IC 2007-320-165 (line 21), IC 2007-320-166 (lines 12 through 14, 16, 17, and 29 through 32), IC 2007-320-168 (lines 12, 15, 16, 23 through 26, 28 and 29), IC 2007-320-169 (lines 15, 16, 31, 32 through 35, and 40 through 42 ), IC 2007-320-170 (lines 24, 39, and 40), IC 2007-320-174 (lines 12, 14 through 16, and 24), IC 2007-320-175 (lines 14 through 16), IC 2007-320-176 (lines 11, 18, 33, and 34), IC 2007-320-177 (lines 18, 20, 24, and 25), IC 2007-320-179 (lines 20, 21, 28, and 29), IC 2007-320-180 (lines 14, and 15), IC 2007-320-181 (lines 11 through 13, 24, 25, 27, and 28), IC 2007-320-182 (lines 18, 24, 26, and 34), IC 2007-320-184 (lines 13 through 17, 32, 33), IC 2007-320-185 (lines 21 through 23, and 35 through 38), IC 2007-320-186 (lines 12, 13, 23, 24, and 33 through 35), IC 2007-320-187 (lines 10, 13 through 15, 17 through 22, 26 through 28, and 32), IC 2007-320-188 (lines 12, 13, 17 through 19, 21, and 27), IC 2007-320-189 (lines 24 through 26), IC 2007-320-192 (lines 28 and 35), IC 2007-320-194 (lines 16, 17, 20, 21, 31, 32, and 36), IC 2007-320-195 (lines 35 through 38), IC 2007-320-196 (lines 18 through 20), IC 2007-320-198 (lines 13, 14, 18 through 21, 27 through 29, 32, 33, 35, and 36), IC 2007-320-199 (lines 14, 15, 28 and 29), IC 2007-320-200 (lines 30 and 31), IC 2007-320-201 (lines 14, 15, and 19 through 21), IC 2007-320-202 (lines 18 through 20, 22, 23, 24, and 25), IC 2007-320-203 (lines 13 and 14), IC 2007-320-207 (lines 16 and 17), IC 2007-320-222 (lines 10, 11 and 39 through 41), IC 2007-320-223 (lines 41 and 42), IC 2007-320-224 (lines 14, 15, 25 and 26), IC 2007-320-225 (lines 15 and 16), IC 2007-320-228 (lines 10 and 11), IC 2007-320-230 (lines 12 through 14), IC 2007-320-237 (line 43), IC 2007-320-238 (lines 15 through 18), IC 2007-320-240 (line 37), IC 2007-320-241 (lines 11, 12, 19, 20, 26, 28, and 29), IC 2007-320-246 (lines 25, 26, and 32 through 35), IC 2007-320-252 (lines 38 through 40), IC 2007-320-254 (lines 39 through 40), IC 2007-320-259 (lines 22 and 23), IC 2007-320-262 (lines 12 and 13), and IC 2007-320-265 (lines 32 through 34 and 36 through 39).

17.   Section 1-210(b)(4), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure 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 . . . .

18.  With respect to the respondent’s claim that portions of the requested records, identified in paragraph 16, above, are exempt from disclosure pursuant to §1-210(b)(4), G.S., it is found that, at the time of the complainants’ request and the hearing on this matter, the Settlement Agreement, referenced in paragraphs 2.a, and 2.d, above, was no longer in effect, and that the lawsuit to which such Settlement Agreement pertained is, again, pending.  It is found further that the respondent is a party to such lawsuit and that such lawsuit constitutes “pending litigation” within the meaning of §1-210(b)(4), G.S.

 

19.  It is also found, after careful review of the in camera records, that the following records, or portions thereof, constitute records pertaining to “strategy” and “negotiations” with respect to pending litigation within the meaning of §1-210(b)(4), G.S.:  IC 2007-320-36 (line 22, after “re:” only), IC 2007-320-44 (line 6, after “re:” only), IC 2007-320-50 (line 28, after “re:” to “analyze” and after “analyze” to “and” only), IC 2007-320-52 (line 14, the name of the document reviewed only), IC 2007-320-55 (line 36, last word only), IC 2007-320-64 (lines 15, after “on” to end, 16, first word only, 21, after “re” to end, 22, first word only, 25, after “to” to end, 26, all, 27, all, 28, all, 29 all, 33, after “on” to end), IC 2007-320-68 (line 13, first word only), IC 2007-320-69 (lines 11, after “on” to end, 16, after “research” to “conferences” only, 18, after “on” to “began”, 24, after “on” to “drafted”, 33, after “on” to “issues” only), IC 2007-320-70 (lines 13, first four words and last two words only, 14, all), IC 2007-320-73 (lines 29, after “researching” to end, 30, all), IC 2007-320-80 (line 23, after “the” to “ report”, only), IC 2007-320-88 (line 20, after “re:” only), IC 2007-320-89 (lines 10, after “on” to issue, only, 22, after “to” to end, 23, after “re:” only, 24, first two words only, and 27, after “on” to issue, only), IC 2007-320-90 (lines 12, after “review” to “memo”, only, 24, after “for” to end, 25, all, 26, all, 30, after “with” to end, 31, all, 32, all, 33, all, 34, all), IC 2007-320-93 (lines 12, after “on” to end, and 27, after “review” to “draft” and after “draft” to “for”), IC 2007-320-94 (lines 12, after “on” to “keycite” only, 20, after “read” to end only, 21, after “research” to end, 28, after “read” to “draft” only), IC 2007-320-95 (lines 25, after “re:” to end, 26, first three words only, 33, after “re” to “for”), IC 2007-320-97 (lines 12, after “to” to end, 13, first two words only, 34, after “highlight” to end, 35 all, 36 up to the word “in” only), IC 2007-320-98 (lines 13, last word only, 14, up to “research” and after “research” to end, only, 15, after “re:” to end, only, 22, after “re:” only), IC 2007-320-99 (line 17, after “re:” to end only), IC 2007-320-102 (lines 17, after “including:” to end, only, 18, up to “notes” only), IC 2007-320-105 (lines 14, after “to” to end only, 15, all, 25, last two words, 26, first two words, 27, after “the” to end, 28, all, 29, first two words,  31, all, 32, up to “draft” only), IC 2007-320-106 (line 38, all), IC 2007-320-107 (lines 12, after “re:” to “research”, 13, all, 24, first two words, and 26, after “research” to end), IC 2007-320-108 (lines 13, after “of” to “report”, 26, all, 27, up to “in”, 30, all), IC 2007-320-109 (lines 19, after “discussing” to end, 29, after “on” to “draft” and after “draft” to “memo”), IC 2007-320-110 (lines 13, after “on” to “read”, 15, after “research” to “draft”, 27, after “research” to end, 29, after “organize” to “documents”, 31, after “with” to end, 34, all 35, all, 38, all, 39, all), IC 2007-320-111 (lines 11, after “research” to “conference” only, 35, after “on” to end,  37, after “on” to end), IC 2007-320-114 (lines 13, after “ research” to “issues”, 22, after “calendar” to end, 23, all, 24, all, 26, after “on” to “affidavit”), IC 2007-320-115 (lines 20, after “the” to end, 21, 23, after “on” to “affidavit”, all, 37, after “the” to end, 38, all), IC 2007-320-116 (lines 11, after “on” to “affidavit”, 32, after “the” to end, 33, all), IC 2007-320-117 (lines 10, after “research” to “draft”, 22, from “of” to end, 26, after “on” to end, 27, first word and after “research” to end, 28, after “brief” to end), IC 2007-320-118 (lines 10, last word only, 11, first word only, 30, after “to” to end, 31, all, 33, after second “review” to “memo”, 34, after “re:” to “memo”), IC 2007-320-119 (lines 19, first two words, 25, after “letters” to “research”, 27, the name before “affidavit”, 30, after “of” to “affidavit”, and last word, 33, last word only, 34, up to “defendants’”), IC 2007-320-120 (lines 10, after “with” to “re”, 29, after “date” to end, 30, all, 31, first word only, 39, after “with” to “affidavit”), IC 2007-320-121 (lines 11, after “with” to “regarding”, 25, after “to”, 26, all, 36, name before “RE: HIS AFFIDAVIT”), IC 2007-320-122 (line 20, after “on” to “affidavit”), IC 2007-320-123 (line 33, after “re:”), IC 2007-320-124 (lines 30, all, 31, all), IC 2007-320-125 (line 16, after “review” to “drafts” only), IC 2007-320-126 (lines 11, after “re:”, 12, all, 13, all, 28, all, 34, after “to” to end), IC 2007-320-127 (line 13, after “with” to “review”), IC 2007-320-130 (lines 17, after “to” to “regarding”, 19, all, 26, up to “meeting”, 28, up to “prepare”, 35, after “on” to “defense”, 38, after “researched” to end, 39, all, 40, all), IC 2007-320-131 (lines  26, after “regarding” to “review”, 27, last word only, 28, first three words, only, 29, all, 31, after “whether” to end, 32, all), IC 2007-320-132 (lines 19, after “regarding” to “research” and last word, 20, all), IC 2007-320-133 (lines 13, after “research”  to “draft” only, 34, after “to” to end), IC 2007-320-134 (lines 15, first word only, 22, after “research” to “draft”, 23, all), IC 2007-320-135 (lines 14, after “research” to draft”), IC 2007-320-137 (lines 25, after “on” to “and”, 26, all), IC 2007-320-138 (lines 11, after “research” to end, 12, after “on” to end, 27, all, 28, first word only, 34, after “regarding” to end), IC 2007-320-139 (line 13, after “re:” to end), IC 2007-320-140 (lines 10, up to second “review”, 19, last word only, 20, all, 24, after “experts” to “documents” only, 25, after “the” to end, 26, all, 27, all, 28, all, 37, after “to” end, 38, first word, and last two words only), IC 2007-320-141 (lines 19, after “with” to “regarding”, 26, after “research” to end, 28, after “the” to end, 29, all, 32, after “of” to  “in”, 38, after “research” to end, 39, all, 40, all), IC 2007-320-142  (lines 11, last word only, 12, first word only, 20, after “re:” to end, 21, first two words only, 30, after “of” to “conference”, 32, all, 33, all, 40, after “on” to “affidavit”), IC 2007-320-143 (line 15, after “on” to “affidavit”), IC 2007-320-145[2] (lines 24, after “with” to end, 25, all, 26, all), IC 2007-320-148 (lines 20, after “regarding” to end, 21, all, 28, after “researched” to end, 29, first word only, 34, after “researched” to “began” 39, after “re:” to end, 40 all), IC 2007-320-149 (lines 15, after “re:” to end, 16, first two words only, 21, all, 22, all, 24, after “whether” to end, 25, all 26, all, 36, after “whether” to end, 37, all, 38, all, 41, all), IC 2007-320-150 (lines 14, after “researched” to end, 15, all, 17, after “re:” to end, 33, after “on” to end, 35, after “on” to “issues”), IC 2007-320-151 (lines 18, after “re:” to end, 19, first word only, 29, all, 30, all, 31, first word and last word only, 32, all, 33, all, 38, after “re:” to “issue” only),  IC 2007-320-152 (lines 13, after “on” to end, 14, up to “exchange” only), IC 2007-320-153 (lines 10, all, 11, up to “strategy”, 13, after “to” to end, 14, all, 15, all), IC 2007-320-154 (lines 11, first two words only, 12, after “on” to end, 13, all, 21, after “on” to “issues”,  24, after “whether” to end, 25, all, 26, all, 28, after “on” to end), IC 2007-320-155 (lines 15, all, 16, all, 17, all, 18, all, 21, after “on” to “issues”, 28, last two words only, 30, after “researched” to “wrote”), IC 2007-320-156 (lines 34, after “by” to end, 36, after “researched” to end, and 37, all), IC 2007-320-157 (lines 31, first two words only, 33, after “regarding” to end, 34, all, 35, first word only), IC 2007-320-158 (lines 10, after “researched” to end, 11, all, 13, last word only, 30, after “on” to “issues”, 31, after “prepare” to end, 34, after “the” to end, 35, all), IC 2007-320-159 (lines 16, after “the” to end, 24, after “on” to “telephone”), IC 2007-320-161 (lines 14, second word only), IC 2007-320-162 (lines 19, after “on” to “testimony”, 26, after “on” to “in”, 31, after “of” to end, 32, all), IC 2007-320-163 (lines 30, after “whether” to end, 31, all, 35, after “researched”, 36, all), IC 2007-320-165 (lines 21, name of case only), IC 2007-320-166 (lines 12, third word only, 13, last two words only, 14, after “researching” to end, 17, all, 30, after “regarding” to end, 31, all, 32, first word only), IC 2007-320-168 (lines 12, after “research” to “conf.”, 23, after “research” to “issues” only, 24, last word only, 25, first word only, 28, after “court—”, only, 29, all), IC 2007-320-169 (lines 15, after “on” to end, 33, after “any;” to end, 34, up to “review”, 41, first word only), IC 2007-320-170 (lines 24, second word only, 39, after “from” to end, 40, all ), IC 2007-320-174 (lines 12, last word only, 14, after “re:” to end, 15, after “with” to “re:”, and 24, after “on” to “conference” only), IC 2007-320-175 (lines 15, last word only, 16, first word only), IC 2007-320-176 (lines 11, name of case only, 18, last word only, 33, after “on” to end, and 34, all), IC 2007-320-177 (lines 18, name of case only, 20, after “researched” to end, 24, after “on” to end, and 25, all), IC 2007-320-179 (lines 21, first two words only, and 29, after “with” to “as”), IC 2007-320-180 (lines 14, after “with” to “re:”, 15, after “review” to end), IC 2007-320-181 (lines 11, all, 12, all, 13, first word only, 25, first word only, 27, after “regarding” to end, and 28, first word only), IC 2007-320-182 (lines 18, after “review” to “deposition”, 24, after “review” to end, 26, name of person only, and 34, name of person only), IC 2007-320-184 (lines 14, after “with” to “regarding” and after “of” to end, 15, first word only, 32, after “on” to end, 33, all), IC 2007-320-185 (lines 21, after “on” to end, 22, up to “and”, 36, after “on” to end, 37, all, 38, all), IC 2007-320-186 (lines 34, after “the” to end, and 35, all), IC 2007-320-187 (lines 10, after “on” to “analysis”, 13, after “on” to end, 17, after “of” to end, 18, all, 21, all, 28, all), IC 2007-320-188 (lines 19, all,  21, after “research” to end), IC 2007-320-189 (line 26, all), IC 2007-320-192 (line 35, after “of” to end), IC 2007-320-194 (lines 20, after “review” to “for”, 32, after “on” to “work” and 36, after “research” to “for”), IC 2007-320-195 (lines 36, after “to” to end, 37, all, 38, first three words only,), IC 2007-320-196 (lines 18, after “research” to end, 19, all), IC 2007-320-198 (lines 13, first two words only, 27, after “revise” to “agreement”), IC 2007-320-199 (lines 14, after “with” to end, 15, first word only), IC 2007-320-201 (lines 19, after “analyze” to “issues”, 20, after “analyze” to end, 21, all), IC 2007-320-202 (lines 18 through 20, all, 23, after “with” to end, 24, after “with” to end, 25, all), IC 2007-320-207 (lines 16, after “conference” to “review”, 17, first word only), IC 2007-320-223 (lines 41, after “re:” to end, and 42, all), IC 2007-320-224 (lines 14, after “re:” to end, 15, all, 25, after “re:” to end, and 26, all), IC 2007-320-225 (line 16, up to “and” only), IC 2007-320-228 (lines 10, after “re:” to end, and 11, all), IC 2007-320-230 (lines 12, after “on” to end, 13, all, 14, all), IC 2007-320-238 (lines 15 through 18, all), IC 2007-320-246 (lines 25, after “and” to end, 26, all), IC 2007-320-254 (lines 39, last word only, and 40, all), IC 2007-320-259 (lines 22, after “regarding” to end, and 23, all), and IC 2007-320-262 (lines 12, after “re:” to end, and 13, all).

            20.   It is concluded that the in camera records, or portions thereof, described in paragraph 19, above, are permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S., and that the respondent therefore did not violate the FOI Act, as alleged, when he withheld such records, or portions thereof, from the complainants.  Conversely, all in camera records, or portions thereof, described in paragraph 16, but not listed in paragraph 19, are found not to be exempt from disclosure pursuant to §1-210(b)(4), G.S.

21.  Next, the respondent contends that §1-210(b)(10), G.S., exempts from disclosure the records, or portions thereof, described in paragraph 16, above.[3]   The respondent also contends that §1-210(b)(10), G.S., exempts the following additional records, or portions thereof:  IC 2007-320-35 (lines 9, 10 and 19), IC 2007-320-45 (line 19), IC 2007-320-141 (lines 19, 20 and 21), IC 2007-320-164 (lines 19, 20, 21, 34, 35, 36), IC 2007-320-165 (lines 13, 14, 15, 23, 24, 25, and 26).   

            22.  Section 1-210(b)(10), G.S., in relevant part, permits the nondisclosure of “…communications privileged by the attorney-client relationship.” 

23.  With respect to the §1-210(b)(10), G.S., claim of exemption, the applicability of such exemption 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.

 

24.  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. . . .[Emphasis added.]

 

25.  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.

 

26.  Upon careful review of the in camera records described in paragraph 21, above, it is found that none of those in camera records are confidential communications between attorney and client relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney within the meaning of §52-146r(2), G.S.  It is found that such in camera records are therefore not exempt from disclosure under §1-210(b)(10), G.S.

 

27.  It is therefore concluded that the respondent violated the FOI Act in failing to disclose to the complainants those records, or portions thereof, found not to be exempt from disclosure in paragraphs 20 and 26, above.

 

28.  With regard to the request for the deposition transcripts, described in paragraph 2.b, above, it is found that such transcripts are voluminous and are maintained at the office of the town’s attorneys.  Under such circumstances, it is found that it was reasonable for the respondent to request that the complainants contact the town’s attorneys to view such transcripts.  It is further found that the respondent made repeated offers to the complainants to view such transcripts, in letters dated May 4, 2007, May 25, 2007, August 10, 2007 and August 22, 2007.  

 

29.  It is found that the complainants did not contact Victoria Schneider, at the office of the town’s attorneys, in order to view the transcripts.  Therefore, with regard to the request for the deposition transcripts, the respondent did not violate the FOI Act with respect to such request. 

 

            30.  With regard to the request for pleadings and briefs, described in paragraph 2.b, above, it is found that the respondent maintains such records either at the town offices or at the office of their attorney.  It is further found that the respondent made no effort to comply with such request, other than to direct the complainants to the federal district court in Hartford.  In failing to comply with the request for copies of the pleadings and briefs, described in paragraph 2.b, above, it is concluded that the respondent violated §1-210, G.S.

 

            31.  With regard to the request for the accounting, described in paragraph 2.c, above, it is found that the respondents, in providing access to such record to the complainants four weeks after the request was made, did not promptly comply with such request, within the meaning of §1-210(a), G.S.  It is therefore concluded that the respondent violated the promptness provision in §1-210(a), G.S., with regard to such request.

 

            32.  With regard to the request to inspect supporting documents, described in paragraph 2.c, above, it is found that, although the respondents stated that they were willing to make the records available, the complainants did not follow up on such request after the respondent informed them that retrieval of such information, because it was on microfiche, would involve “an additional cost.” 

 

33.  However, because the request was for inspection, and not for copies, of such records, it is found that the respondent’s statement that “an additional cost” would be involved, was intended to discourage the complainants from pursuing such request, and was tantamount to a denial.  It is further found that the respondent did not claim or prove an exemption for such records at the hearing in this matter.  It is therefore concluded that the respondent violated §1-210(a), G.S., by failing to make available for inspection the supporting documents, described in paragraph 2.c.  

 

34.  With regard to the request described in paragraph 2.d, above, at the hearing in this matter, the complainants withdrew their request for correspondence pertaining to the “above referenced legal action” and thereby limited their request to correspondence between the Board (and its attorneys) and Eureka (and its agents) pertaining to the Settlement Agreement, between March 19, 2002 and December 2006.  The complainants further clarified, at the hearing in this matter, that they are only seeking correspondence pertaining to strategy and negotiation with respect to the Settlement Agreement.

 

35.  At the hearing in this matter, counsel for the respondent argued that all correspondence pertaining to the Settlement Agreement, is necessarily exempt under §1-210(b)(4), G.S.

 

36.  As noted in paragraph 17, above, §1-210(b)(4) provides for nondisclosure of “[r]ecords 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.”

 

37.  As found in paragraph 18, above, the Settlement Agreement is no longer in effect and the litigation to which it pertains, is, once again, pending.  As further found in paragraph 18, the respondent is a party to such pending litigation and that such litigation constitutes “pending litigation” within the meaning of §1-210(b)(4), G.S.

 

38.  Based upon the foregoing, it is concluded that the correspondence sought by the complainants, described in paragraphs 2.d and 35, above, is exempt from disclosure.  It is therefore concluded that the respondent did not violate the FOI Act in withholding such records from the complainants.

 

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 complainants with a copy, free of charge, of the in camera records responsive to the request in paragraph 2.a, of the findings, above.  In complying with such order, the respondent may redact only those portions of such records found to be exempt from disclosure in paragraph 19, of the findings, above.

 

2.  Forthwith, the respondent shall provide the complainants with a copy, free of charge, of the pleadings and briefs responsive to the request in paragraph 2.b, of the findings, above.

 

3.  Forthwith, the respondent shall provide the complainants with access, free of charge, to the supporting documents responsive to the request in paragraph 2.c, of the findings, above.

 

4.  Henceforth, the respondent shall comply with the disclosure and promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 23, 2008.

 

________________________________

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:

 

Eric J. Kristoffersen and the Ridgefield

Open Space Association, Inc.

PO Box 492

Ridgefield, CT 06877

           

Rudolph Marconi, First Selectman,

Town of Ridgefield

c/o Jason A. Buchsbaum, Esq.

Cohen & Wolf, P.C.

158 Deer Hill Avenue

Danbury, CT 06810

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-320FD/paj/4/30/2008