FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 18, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents submitted for in camera inspection the record described in paragraph 8 of the findings, below.

 

            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.  By letter of complaint filed February 27, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for a certain public record pertaining to legal advice.

 

3.  It is found that by letter dated January 14, 2008, the complainant requested, among other records no longer at issue, a copy of any written material used by the State Employees Retirement Commission in considering and formulating its decision not to adjust the pensions of state employees who retired before October 1, 2007.  In essence, the complainant sought the basis for the Retirement Commission’s decision not to adjust the pensions of those state employees, the complainant believing that the Supreme Court’s decision in  Longely v. State Retirement Commission, 284 Conn. 149 (2007) dictated a different result.

 

4.  It is found that the only record at issue is a document known as “Attachment A,” which is a legal opinion, requested by the Retirement Commission from outside counsel, as to which employees’ pensions were required to be adjusted pursuant to the Supreme Court’s decision in Longley.

 

5.  It is found that, following the decision in Longley, the Retirement Commission members raised questions about the individuals to whom Longley applied.

 

6.  It is found that, at all times material, seven court cases remained pending that raised the issue as to the individuals to whom Longley applied.

 

7.  It is found that the Retirement Commission asked outside counsel to provide a legal opinion as to the individuals to whom Longley applied. 

 

8.  It is found that outside counsel prepared the legal opinion, and delivered it in confidence.  The opinion became referred to as “Attachment A” in the minutes of the Retirement Commission’s October 9, 2007 meeting, and was not provided to the complainant.

                                                                                         

9.  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.

 

10.  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.    

 

11.  It is concluded that Attachment A is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

12. The respondents contend that Attachment A is exempt from disclosure pursuant to §1-210(b)(4) and 1-210(b)(10), G.S.

 

13.  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.

 

14.  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….

           

15.  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.

 

16.  It is found that Attachment A is, on its face, privileged by the attorney-client relationship, and therefore exempt from disclosure pursuant to §1-210(b)(10), G.S., unless the privilege was waived.

 

17.  It is found that Attachment A was at all times maintained in confidence, was given only to members of the respondent and key staff, and was never shared with a third party.

 

18.  The complainant maintains that the privilege was waived because (a) Attachment A was “attached” to the minutes of the meeting; and (b) because the memorandum was discussed at a public meeting.

 

19.  While Attachment A was distributed to members of the Retirement Commission at its October 9, 2007 meeting, and was referred to as “Attachment A” in the minutes of that meeting, Attachment A was not attached to the minutes of the meeting, but rather included in a package previously provided to members of the Retirement Commission only.

 

20.  It is also found that the legal opinion contained in Attachment A was not discussed in the public portion of the October 9, 2007 meeting, but only in executive session.

 

21.  It is concluded that the privilege was not waived.

 

22.  It is therefore concluded that the respondents did not violate §1-210(a), G.S., when they declined to provide the complainant with Attachment A.

 

            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 February 11, 2009.

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Docket #FIC 2008-124                                                                                               Page 5

 

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:

 

Brian Belanger

101 Wesleyan Road

Glastonbury, CT 06033

 

Division Counsel, State of Connecticut,

Office of the State Comptroller,

Retirement & Benefit Services Division;

and State of Connecticut,

Office of the State Comptroller,

Retirement & Benefit Services Division

c/o Stephen W. Aronson, Esq.

Robinson & Cole LLP

280 Trumbull Street

Hartford, CT 06103-3597

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

 

 

FIC/2008-124FD/sw/2/24/2009