FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 30 and August 19, 2009, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.

 

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)(A), G.S.

 

2.  It is found that by letter dated February 3, 2009, the complainant requested copies of: a) “the minutes of Tax District meetings for Sept. 2008, Nov. 2008, Dec. 2008, Jan. 2009, and Feb. 2009 when it is available”; b) “documentation for the Tax District’s authorization, retention, billing by, and payment of Omar Shepard to represent the Bartleys in their appeal to the Zoning Board of Woodstock”; c) “any Board of Directors meetings [sic] and/or correspondence regarding the Loomis case and an appeal to the Woodstock Zoning Board”; and d) “correspondence and/or documentation regarding the decision and/or payment of the Lake Bunggee Tax District or Board of Directors for the application fee to the Woodstock Zoning Board of Appeals to appeal the ZEO decision of 9/24/08 to issue a zoning permit for Lots C-38 & C-39 (Map 1272, Block 34) to Ruth Loomis” (the “requested records”).

 

3.  It is found that by letter dated February 19, 2009, the respondent President,  Lake Bunggee Tax District (“respondent President”) acknowledged receipt of only the complainant’s request for minutes, set forth at paragraph 2.a), above, and asserted that the respondents had thirty days to provide the minutes, pursuant to the Freedom of Information Act (“FOIA”).        

 

4.  By letter dated March 3, 2009 and filed with the Commission on March 11, 2009, the complainant appealed to the Commission, alleging that the respondents’ failure to provide the requested records, and to do so promptly, violated the FOIA.

 

5.  Section 1-200(5), G.S., states:

 

“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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

7.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.  For purposes of context, the complainant testified and it is found that the complainant was seeking to determine who and how the respondent Lake Bunggee Tax District (“respondent Tax District”) resolved to hire Attorney Douglas T. Stearns to oppose the construction of a shed on the complainant’s property. At the October 18, 2008 meeting of the respondent Tax District, a motion to approve the verbal report of Patrick Murphy concerning this subject matter was adopted, but there was no vote specifically to hire an attorney.

 

9.  It is found that on February 10, 2009, Jacqueline Dunaway of DEE Associates, who also serves as the clerk of the Lake Bungee Flood & Erosion Control Board, sent a fax to Attorney Douglas T. Stearns asking for a “clarification” as to what should be sent to the complainant in response to her FOIA request. Ms. Dunaway also sent an email to the respondent President and the rest of the Board of the respondent Tax District seeking the same “clarification.” After Ms. Dunaway received no response from the respondent President or Attorney Stearns, Ms. Dunaway sent a certified letter to the respondent President on February 13, 2009, again seeking the same clarification. The respondent President called Ms. Dunaway the following week, instructing Ms. Dunaway to send only the minutes and also informing her that Attorney Stearns stated that Ms. Dunaway had thirty days to do so. 

 

10.  It is found that on March 16, 2009, the respondents provided the complainant with the unapproved minutes for meetings of the respondent Tax District set forth at paragraph 2.a), above. At the August 19, 2009 hearing, the respondents stated that the approved minutes are available on the website of the respondent Tax District.

 

11. It is found that, with reference to the records requested at paragraph 2.b), above, the respondents submitted sixteen records for in camera inspection. Such records are hereby identified as IC-2009-132-1 through IC-2009-132-16. Except for the minutes disclosed as set forth at paragraph 10, the respondents testified that they maintain no other records within the scope of the request at paragraph 2.b), above, and it is so found.

 

12.  It is found that, with reference to the records requested at paragraph 2.c), above, the respondents provided some correspondence with a cover letter dated June 15, 2009 from Douglas T. Stearns to the complainant. The other records maintained by the respondents within the scope of the request at paragraph 2.c), above, are included among the in camera records.  

 

13.  It is found that, with reference to the records requested at paragraph 2.d), above, that there was no application fee to the Woodstock Zoning Board of Appeals. Therefore, there could be no correspondence or documentation regarding the payment of an application fee that did not exist.       

 

14.  The respondents contend that IC-2009-132-1 through IC-2009-132-16 are exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S.

 

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

 

16.  Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such law is well set forth in Maxwell v. FOIC, 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. . . . (emphasis added)

 

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.  Based on the in camera inspection, it is found that:

 

a.    IC-2009-132-1 is not a confidential communication as defined at §52-146r(2), G.S.;

b.    IC-2009-132-2 through IC-2009-132-5 are confidential communications as defined at §52-146r(2), G.S.;

c.     IC-2009-132-6 is not a confidential communication as defined at §52-146r(2), G.S.;

d.    With reference to IC-2009-132-7, the top email in the string on the page, from the respondent President to Attorney Stearns, is a confidential communication as defined at §52-146r(2), G.S.; the second and third emails going down the page, from  Ms. Dunaway to the respondent Board, are not confidential communications as defined at §52-146r(2), G.S.;

e.     IC-2009-132-8 is not a confidential communication as defined at §52-146r(2), G.S., except that the second paragraph and the parenthetical phrase in the third and fourth lines of the fourth paragraph are confidential communications as defined at §52-146r(2), G.S.; and

f.     IC-2009-132-9 through IC-2009-132-16 are confidential communications as defined at §52-146r(2), G.S.

 

20.  It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with copies of the records described at paragraph 19.a. and 19.c., as well as the portions of records described at paragraph 19.d. and 19.e., all of which are not confidential communications pursuant to §52-146r(2), G.S.   

 

21.  Based upon the delay between the request on February 3, 2009 and the delivery of records on March 16, 2009 and June 15, 2009, it is concluded that the respondents did not provide the complainant promptly with the records described at paragraphs 10 and 12. There was no reason that the provision of unapproved minutes should take thirty days and the FOIA law does not authorize such a time period.

 

22.  It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide the records described at paragraphs 10 and 12 promptly.

 

            The following orders by the Commission are hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.      Forthwith, the respondents shall provide the complainant with the records described in paragraph 20.

 

2.  Henceforth, the respondents shall provide all non-exempt requested records promptly. 

 

   3.  The respondent Tax District shall contact the Commission and schedule a workshop for its members concerning the FOIA.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 28, 2009.

 

 

____________________________

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:

 

Ruth Loomis

40 Shippee Road

Rowe, MA 01367

 

President, Lake Bunggee Tax District;

and Lake Bunggee Tax District

C/o Douglas T. Stearns, Esq.

75 Murphy Hill Road

Windham, CT 06280

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-132FD/sw/10/30/2009