FIC2008-068

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Preston D. Shultz and Citizens for Prudent Spending,
		Complainants
	against		Docket #FIC 2008-068
Superintendent of Schools, Woodstock Public Schools; and Woodstock Public Schools,
		Respondents	September 10, 2008

The above-captioned matter was heard as a contested case on June 5, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the matter was consolidated with Docket #FIC 2008-015; Preston D. Shultz and Citizens for Prudent Spending v. Superintendent of Schools, Woodstock Public Schools and Board of Education, Woodstock Public Schools.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of §1-200(1), G.S.

2. It is found that, by letter dated December 11, 2007, the complainants requested that the respondents provide them with access to and a copy of fifty different records, which records the complainants claimed were identified in billing records sent from Shipman & Goodwin LLP to the Woodstock Board of Education.

3. It is found that, by letter dated December 13, 2007, the respondents acknowledged the complainants’ request for records, and stated that they would begin processing the request.

4. It is further found that the respondents promptly provided some of the requested records to the complainants, but withheld other records from the complainants.

5. By letter dated and filed January 30, 2008, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) by denying them access to public records.

6. 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.

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 (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.

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

9. It is found that the respondents maintain some of the records referenced in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

10. At the hearing on this matter, the complainants testified that the respondents had provided them with the records responsive to requests 23, 48 and 46. Accordingly, it is found that these requests are no longer at issue in this case.

11. At the hearing, the respondents contended that the records that they have not disclosed to the complainants are either records permissibly exempt from disclosure based on the attorney-client privilege or are records that they do not have in their possession.

12. In response to the following requests, the respondents provided some records to the complainants, but withheld other records on the ground that the additional records were permissibly exempt pursuant to §1-210(b)(10), G.S.:

a. (1) Communications to or from or notes from telephone conference RE: dissemination of information concerning referenda vote as billed on 5/7/04;

b. (39) Any notes from meeting [sic] with L. Paul, W. Loftus, F. Baran and G. Brochu regarding meeting with State Department of Education as billed on 6/19/06; and

c. (40) Any and all documents referred to and any notes from telephone conferences by or between Victor Muschell and F. Baran RE: Negotiations with Woodstock Academy as billed between 5/31/06 and 6/22/06.

13. The respondents further contended that all of the records responsive to the following requests were records permissibly exempt pursuant to §1-210(b)(10), G.S.:

a. (25) Any notes from telephone conference or contact and memorandum regarding funding issue and Proposition 46 as billed on 5/10/06;

b. (26) Memorandum RE: Proposition 46, any notes from office conference regarding same and communication RE: Writ of Mandamus as billed on 5/11/06;

c. (35) All correspondence as noted or notes regarding telephone conferences RE: Board budget issue as billed on 6/8/06; and

d. (49) Any notes from telephone conference regarding memorandum and negotiations with Woodstock Academy as billed on 12/14/06.

14. At the close of the hearing in this case, the respondents submitted the records described in paragraphs 12 and 13, above, to the Commission for an in camera inspection (hereinafter the “in camera records). Such in camera records shall be identified at IC-2008-068-1 through IC-2008-068-24.

15. Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.”

16. 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.

17. 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. . . .

18. 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.

19. It is found that the respondents requested confidential legal advice from their attorneys concerning their professional obligations as public agencies.

20. It is found that IC-2008-068-1 through IC-2008-068-24 are written communications between the respondents and their attorneys concerning the legal advice solicited by the respondents.

21. After a careful review of the in camera records, it is found that the records are communications related to legal advice sought from a professional legal advisor, in the course of his or her duties, and were related to business under consideration by the respondents. It is further found that the communications were made in confidence. It is found, therefore, that the records in question constitute records of communications privileged by the attorney-client relationship.

22. It is found that the respondents did not waive the privilege.

23. It is found that the FOI Act exempts the records at issue from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.

24. Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainants.

25. The respondents further testified that with respect to the following requests they had no responsive records in their possession: requests 2 through 22, 24, 27 through 34, 36 through 38, 41 through 45 and 47.

26. The respondent superintendent testified that, upon receiving the complainants’ request, he met with his business manager to discuss the fifty record requests and devise a plan for searching the respondents’ files. The respondent superintendent testified that the respondents’ search plan included a strategy for searching the respondents’ paper and electronic files.

27. The respondent superintendent further testified that in response to request 50, which sought records of communication between Board of Education members, the superintendent, any Board of Education employee, or counsel from June 2004 through the present, the respondents’ search plan included searching the paper and electronic files in the respondents’ possession, as well as contacting previous Board of Education members to ensure that other responsive records were not excluded from disclosure.

28. The respondent superintendent testified that all responsive, non-exempt records had been disclosed to the complainants.

29. It is found that the respondents do not keep on file any additional records that are responsive to the complainants’ request and that the respondents performed a diligent and thorough search for records.

30. Accordingly, it is found that the respondents 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 dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 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:

Preston D. Shultz and

Citizens for Prudent Spending

c/o Robert L. Skelley, Esq.

Innovative Legal Minds, LLC

952 North Main Street

Danielson, CT 06239

Superintendent of Schools, Woodstock

Public Schools; and Woodstock

Public Schools

c/o Paul M. Shapiro, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103

Woodstock Public Schools