FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 4, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   For purposes of hearing, this case was consolidated with Docket #FIC 2007-418; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10 and Docket #FIC 2007-458; Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10.  The Commission takes administrative notice of the administrative record in the aforementioned contested cases.

 

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 dated August 1, 2007, the complainant made the following request to the respondent:

 

a.       “copies of any and all billing records related to legal work that has been farmed out to the firm Howd & Ludorf and/or your regular counsel regarding alleged civil rights violations by you and your administration against students including Avery Doninger.  These records include but are not limited to retainer agreement, indemnifications clause, retainer check and other checks and invoices; also, meeting minutes, memorandums, phone logs and e-mails regarding the administration’s handling of these matters;” and

b.      “copies of the write-in votes submitted for Ms. Doninger and any… related records including memos and e-mails.”

 

The complainant informed the respondent that he would file a complaint with this Commission, and request civil penalties, if she failed to comply promptly with his request.  The complainant indicated that by prompt he meant “immediately” unless the respondent could “demonstrate to the FOI Commission that complying with his request interfered with the normal course of business.”

 

3.      By letter dated August 2, 2007, the complainant asked to be “provided with any and all billing records from the firm Chinni & Meuser [from] January 1, 2007 to present,” free of charge.

 

4.      By letter dated and filed on August 6, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his August 1 and 2, 2007 records request.  The complainant requested the imposition of a one thousand dollar civil penalty against the respondent and an order that she attend an FOI workshop.

 

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

 

“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.

 

6.      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. 

 

7.      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 . . . .”

 

8.      It is found that, to the extent they exist and are maintained by the respondent, the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      With respect to the request described in paragraph 2, above, all issues raised in this complaint have been fully addressed in contested case docket# FIC 2007-418, Andy Thibault v. Paula Schwartz, Superintendent of Schools, Regional School District #10, and therefore such issues will not be addressed again herein. 

 

10.   With respect to the complainant’s request described in paragraph 3, above, it is found that the complainant was informed that he would “receive the copies of those documents once the information contained in them that is protected by the attorney-client privilege has been redacted and you remit the applicable fee.” 

 

11.   It is found that the respondent provided the complainant with a redacted copy of the records described in paragraph 3, above.

 

12.   It is found that by letter dated December 6, 2007 to this Commission and at the hearing in this matter, the complainant objected to the respondent’s provision of  “only portions of Chinni’s billing records” and requested that the Commission conduct an in camera review of all unredacted billing records responsive to his August 2, 2007 request.

 

13.   At the hearing on this matter, and in her post hearing brief, the respondent claimed that the issues in this appeal are limited to those raised in the complainant’s August 6, 2007 letter of complaint and that the complainant’s objections to the redacted copy he was provided are beyond the scope of that letter. 

 

14.   It is found, however, that unless otherwise stated, a request for a copy of “any and all” public records is implicitly a request for a copy of the records in their entirety and not a redacted copy of them.  It is found, therefore, that the complainant’s August 6, 2007 letter of complaint that the respondent denied his request for public records necessarily includes the respondent’s failure to provide a copy of a complete and unredacted copy of those records.

 

15.   It is concluded, therefore, that the complainant’s objection to the redacted copy of the requested records provided by the respondent is within the scope of his complaint and will be addressed herein.

 

16.    At the request of the hearing officer, the respondent submitted an unredacted copy of the records described in paragraph 3, above, to the Commission for in camera inspection, which records have been identified as in camera record #s 2007-421-001 through 2007-421-027. 

 

17.   The respondent contended that all of the redactions made to the requested records are exempt from disclosure pursuant to §1-210(b)(10), G.S.

 

18.   Section 1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act requires the disclosure of  “communications privileged by the attorney-client relationship . . . .”

 

19.   The exemption for attorney-client privileged communications contained in §1-210(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law: “Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.”  Lafaive v. Diloreto, 2 Conn. App. 58, 65 (1984), cert. denied 194 Conn. 801 (1984).

 

20.   The attorney-client privilege protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice.  Ullmann v. State, 230 Conn. 698, 711 (1994).  It is strictly construed because it “tends to prevent a full disclosure of the truth . . . .” Id. at 710. 

 

21.   It is found that the in camera records are billing records that do not contain any communications from the respondent, or the school district, seeking legal advice nor do they contain any communications in response to a request for legal advice.  Rather, it is found that the in camera records only reflect, in general terms, the legal services billed to the school district.  It is further found that such records are not communications between attorney, in the capacity as legal adviser, and client, and do not contain legal advice sought by the client and provided in confidence.

 

22.   It is concluded, therefore, that the in camera records described in paragraph 16, above, are not privileged communications within the meaning of §1-210(b)(10), G.S.

 

23.   The respondent also contended that initials that appear on three of the in camera records are exempt from mandatory disclosure pursuant to §1-210(b)(17), G.S., which provides in relevant part that nothing in the FOI Act requires the disclosure of “educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g. . . .”

 

24.    This Commission has found that 20 U.S.C. §1232g prohibits public schools that receive federal funding from disclosing information concerning a student that would personally identify that student.  See Docket #FIC 1999-306; Brenda Ivory v. Vice-Principal, Griswold High School, Griswold Public Schools; and Griswold Public Schools (Final Decision dated January 26, 2000).                       

 

25.   It is found that the initials that are on the three in camera records would not, by themselves, disclose any personally identifiable information about the students and it is found that there is no evidence that other specific information, such as the dates and times of a particular incident, or other information specific to a student situation, if coupled with the initials would disclose that student’s identity. 

 

26.   It is concluded, therefore, that the initials are not permissibly exempt from disclosure under 20 U.S.C. §1232g and §1-210(b)(17), G.S., because they would not personally identify a student.

 

27.   It is further concluded, therefore, that the respondent violated §§1-210(a) and 1-212(a), G.S., when she provided the complainant with a redacted copy of the records described in paragraph 3, above.

 

28.   The Commission declines to consider the imposition of a civil penalty in this matter. 

 

29.   The complainant’s request for an order for the respondent to attend an FOI workshop is hereby denied.

 

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 paragraph 3 of the findings, above, free of charge. 

 

2.      Henceforth, the respondent shall strictly comply with the provisions of §§1-210(a), and 1-212(a), G.S.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 11, 2008.

 

 

________________________________

S. Wilson

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:

 

Andy Thibault  

P.O. Box 1415

Litchfield, CT 06759

           

Paula Schwartz, Superintendent

of Schools, Regional School

District #10

c/o Christine L. Chinni, Esq. and

Craig S. Meuser, Esq.

Chinni & Meuser LLC

30 Avon Meadow Lane

Avon, CT 06001

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-421FD/sw/6/17/2008