FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 8, 2009 and October 21, 2009, at which times the complainant and the respondents appeared, stipulated to certain facts 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), G.S.

 

2.      It is found that on April 8, 2009, the complainant’s counsel, Richard Ludgin, made a written request for copies of records for his client, Richard L. Moffitt & Associates:

 

[A]ll City Hall documents since November 1, 2008 that relate to the Moffitt & Associates contract including, but not limited to, all written and electronic communications and memoranda from the Department of Public Works, from Mr. Erdmann’s office, from the Mayor’s office, from the Finance Department and from the Treasurer’s Office.

 

3.      On April 15, 2009, Attorney Ludgin appealed to this Commission on behalf of his client, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with any of the records he requested, described in paragraph 2, above.

 

4.      Section 1-200(5), G.S., in relevant part, defines “public records” as follows:

 

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

 

5.      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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

6.      Section 1-212(a), G.S., provides:  “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 records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that the respondents provided the complainant with records responsive to the request, described in paragraph 2, above, on four occasions:  June 10, 2009; August 11, 2009; September 2, 2009; and September 23, 2009. 

 

9.      It is found that the records provided on June 10, 2009 and August 11, 2009 were records in the custody of the respondent corporation counsel.  It is found that the records provided on September 2, 2009 and September 23, 2009 were records in the custody of the other departments listed in the complainant’s request for records, described in paragraph 2, above.

 

10.    The complainant contends that the respondents failed to provide any of the records promptly, within the meaning of §1-212(a), G.S.

 

11.     It is found that the records provided by the respondent corporation counsel on June 10, 2009 were records that the corporation counsel prepared and presented to the Office of State Ethics on April 23, 2009.  It is found, therefore, that by April 23, 2009, the respondent corporation counsel had gathered records that were responsive to the complainant’s request of April 8, 2009, but the respondents did not provide such records until June 10, 2009.

 

12.     Although the respondents alluded in their post-hearing brief to possible exemptions from disclosure for the records described in paragraph 11, above, the respondents did not claim such exemptions at the hearing in this matter, and did not claim any exemption from disclosure in their post-hearing brief. 

 

13.     It is found, moreover, that providing records to the Office of State Ethics for investigation does not exempt such records from disclosure pursuant to an agency’s duties as set forth in the FOI Act.

 

14.     It is found that the respondents’ initial response, on June 10, 2009, to the complainant’s request for records, was not prompt, in light of the easy availability of such records by at least April 23, 2009.  Accordingly, it is concluded that the respondents violated the promptness requirements of §1-212(a), G.S.

 

15.     With respect to the records provided on September 2, 2009, and September 23, 2009, the respondent corporation counsel admitted that the respondents provided such records only in response to the complainant’s subpoena duces tecum of five officials in other departments of the City of Hartford, for the records that the complainant requested on April 8, 2009, described in paragraph 2, above.  The respondent corporation counsel did not provide such records in response to the complainant’s request pursuant to the FOI Act because the complainant directed his request to the corporation counsel, who, respondents claim, does not have custody of the records of other departments of the respondent City of Hartford.

 

16.     It is found, however, that on April 2, 2009, six days before the complainant’s request for copies of records, the respondent corporation counsel unequivocally instructed the complainant not to contact any city department:  “You are directed to have no further contact with DPW or with any City department, officer or agency, except by your counsel, directed to me.”  (Complainant’s Exhibit A.)

 

17.     It is found, moreover, that respondent corporation counsel identified himself in his April 2, 2009 letter to the complainant as “legal counsel for the City of Hartford.”  It is found that the complainant directed its April 8, 2009 letter of request to respondent corporation counsel in his capacity as legal representative of the City of Hartford.  It is further found that the complainant requested records from City departments that are the clients of respondent corporation counsel. 

 

18.     Counsel for the complainant notes, and this Commission takes administrative notice of, Rule 4.2 of the Connecticut Rules of Professional Conduct, “Communication with Person Represented by Counsel:”

 

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. 

 

19.     It is found that the complainant’s request for records concerned the “subject of the representation” of the complainant by Attorney Ludgin.  It is also found that Rule 4.2 of the Connecticut Rules of Professional Conduct recognizes Attorney Ludgin’s ethical practice of communicating with counsel of a represented party, especially in light of the facts and circumstances of this case, in which the parties were moving rapidly toward the adversarial posture of litigation.

 

20.     It is found that at no time did the corporation counsel object that the records provided pursuant to the complainant’s subpoena duces tecum were beyond the scope of the complainant’s written request of April 8, 2009, described in paragraph 2, above.  It is found, specifically, that the respondent corporation counsel never advised the complainant in any of their ongoing correspondence that the April 8, 2009 request for records did not cover any other City department besides the office of the corporation counsel.

 

21.     It is concluded that the scope of the complainant’s request for copies of records, described in paragraph 2, above, encompassed the respondent City of Hartford, including those departments indicated by the complainant in the written request for records. 

 

22.     It is found that the respondents should not have waited for the complainant’s August 21, 2009 subpoena duces tecum to comply fully with the complainant’s April 8, 2009 request for records.  It is found, therefore, that the respondents failed to provide such records promptly.

 

23.     Accordingly, it is concluded that the respondents violated the promptness requirement of §1-212(a), G.S.

 

24.     At the conclusion of the hearing in this matter, the complainant requested the imposition of a civil penalty, although the complainant did not request such in its April 23, 2009 appeal to this Commission. Section 1-206(b)(2), G.S., provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

25.     It is found that the respondent corporation counsel was not given an opportunity to be heard in response to the complainant’s specific request for the imposition of a civil penalty.  The Commission in its discretion, therefore, declines to impose civil penalties against the respondents.

 

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

 

1.         Henceforth, the respondents shall comply with the 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 February 24, 2010.

 

 

____________________________

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:

 

Richard L. Moffitt & Associates, P.C.

C/o Robert F. Ludgin, Esq.

33 Linden Place

Hartford, CT 06106

 

Corporation Counsel, City of Hartford;

and City of Hartford

C/o John Rose, Jr., Esq.

Corporation Counsel

550 Main Street

Suite 303

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-218FD/sw/2/25/2010