FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by
|
FINAL DECISION |
|
Michael Nash, |
|
|
|
Complainant |
|
|
|
against
|
|
Docket #FIC 2009-231 |
Commissioner, State of Connecticut,
Department of Environmental
Protection; and
State of Connecticut, Department of
Environmental Protection, |
|
|
|
Respondents |
February 24, 2010 |
|
|
|
|
|
The above-captioned matter was heard as a contested
case on August 24, 2009, at which time the complainant and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. For purposes of hearing, this matter was
consolidated with Docket #FIC 2009-372; Michael Nash, Conservator of the
Estate of Charla Nash v. Commissioner, State of Connecticut, Department of
Environmental Protection; and State of Connecticut, Department of
Environmental Protection. 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 March 24, 2009, the complainant made a written
request for copies of records concerning “a chimpanzee known as Travis” and
records concerning non-domesticated or wild animals.
3.
It is found that, in response to the complainant’s request, described
in paragraph 2, above, the respondents undertook a prompt and diligent
search for records.
4.
It is found that by April 13, 2009, the respondents produced the
first set of records for the complainant’s review. It is found that by
July 24, 2009, the respondents had provided thousands of pages of records
for the complainant’s review, the result of hundreds of hours of employee
time. It is found that the respondents continued to provide additional
records to the complainant as they became available.
5.
The respondents did not disclose some records that were responsive to
the complainant’s request because they claimed that they were exempt from
mandatory disclosure.
6.
On April 21, 2009 the complainant 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 all of the records he
requested, described in paragraph 2, above.
7.
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.
8.
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.
9.
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.”
10.
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.
11.
After the hearing in this matter, the respondents submitted
unredacted copies of the disputed records, described in paragraph 5, above,
for in camera inspection, which pages shall be identified herein as
IC-2009-231-1 through IC-2009-231-486.
12.
The respondents claim that §§1-210(b)(1) and 1-210(e)(1), G.S.,
exempt some records from disclosure. (See Index to Records Submitted for In
Camera Inspection, attached, and incorporated herein by reference.)
13.
Section 1-210, G.S., states in relevant parts:
(b) Nothing in
the Freedom of Information Act shall be construed to require disclosure of:
1) Preliminary
drafts or notes provided the public agency has determined that the public
interest in withholding such documents clearly outweighs the public interest
in disclosure;
….
(e)
Notwithstanding the provisions of subdivisions (1) and (16) of subsection
(b) of this section, disclosure shall be required of:
(1) Interagency or intra-agency
memoranda or letters, advisory opinions, recommendations or any report
comprising part of the process by which governmental decisions and policies
are formulated, except disclosure shall not be required of a preliminary
draft of a memorandum, prepared by a member of the staff of a public agency,
which is subject to revision prior to submission to or discussion among the
members of such agency….
14. It is found that the respondents
determined that the public interest in withholding the records referenced in
paragraph 12, above, clearly outweighed the public interest in disclosure.
The respondents testified that they disclosed some preliminary drafts where
the records reflected the opinions of more than one staff member so that the
contents of such records closely reflected the agency’s decisions or
policies. The respondents testified further that they withheld other
preliminary drafts where the contents did not have the input of other staff
or the approval of supervisors.
15. Upon careful examination of the
records submitted in camera referenced in paragraph 12, above, it is found
that, with the exceptions noted in paragraphs 17, below, such records are
preliminary drafts prepared by staff subject to revision prior to submission
to or discussion among officials of the respondent Department of
Environmental Protection with decision-making authority, within the meaning
of §1-210(e)(1), G.S.
16. It is concluded, therefore,
that the respondents did not violate the FOI Act by not disclosing the
records referenced in paragraph 15, above.
17. With respect to IC-2009-231-26,
-27,
-29, -57, -63, -66, -228, -236, -351, -352, -353, -355, and -407, it is
found that, although such records were preliminary drafts, they were
provided to officials of the respondent Department of Environmental
Protection with decision-making authority, within the meaning of
§1-210(e)(1), G.S. It is also found that the respondents failed to
prove that IC-2009-231-57, which is identified on the Index as a wild and
exotic animal log, is a preliminary draft or note. See
Strillachi v. FOIC, CV08-4018120S, New Britain J.D. (Cohn, J., April 20,
2009) (police chief’s notes on status of lawsuits not preliminary because
there was no expectation that document would be modified nor did document
contain information not ‘required or germane’ to its ultimate purpose).
18. Accordingly, it is concluded
that the respondents violated the FOI Act by failing to provide copies of
the records referenced in paragraph 17, above.
19. The respondents claim that
§1-210(b)(3)(C), G.S., exempts some of the records from mandatory
disclosure. (See Index to Records Submitted for In Camera Inspection,
attached, and incorporated herein by reference.)
20. Section 1-210(b)(3), G.S.,
provides, in relevant part, that nothing in the FOI Act shall be construed
to require disclosure of:
[r]ecords of law enforcement agencies not otherwise available to the public
which records were compiled in connection with the detection or
investigation of crime, if the disclosure of said records would not be in
the public interest because it would result in the disclosure of … (C)
information to be used in a prospective law enforcement action if
prejudicial to such action …
21. It is
found that the State Environmental Conservation Police, Department of
Environmental Protection, is a law enforcement agency within the meaning of
§1-210(b)(3), G.S., and that the respondents compiled the records in
connection with the investigation of crime. It is also
found that the records referenced in paragraph 19, above, concern the
investigation of a single individual.
22. In
Department of Public Safety v. FOIC, 51 Conn. App. 100, 105 (1998), the
court stated that §1-210(b)(3)(C), G.S., required an evidentiary showing
that (1) the records are to be used in a prospective law enforcement action
and (2) the disclosure of such records would be prejudicial to such action.
The court further stated that “there must be an evidentiary showing that the
actual information sought is going to be used in a law enforcement action
and that the disclosure of that information would be prejudicial to that
action.”
23. Upon
careful examination of the records referenced in paragraph 19, above, it is
found that, except for IC-2009-231-93, such records were compiled in
connection with the detection or investigation of crime.
24. The respondents claimed that
disclosure of the name of the subject of the investigation would prejudice a
prospective law enforcement action. It is found that the respondents’
witness testified that prejudice would result from the disclosure of
information about other agencies involved or how the subject obtained a wild
or non-domesticated animal from out of state.
25. It is found, however, that the
respondents failed to prove that disclosure of the name of the subject of
the investigation would prejudice the investigation in the manner they
claimed, as described in paragraph 24, above.
26. It is found that the respondents did
prove that disclosure of the name of the law enforcement officer referenced
in the first word of the second line of the body paragraph of the e-mail
identified as IC-2009-231-5, and wherever such e-mail is reprinted in other
in camera records, would prejudice a prospective law enforcement action,
within the meaning of §1-210(b)(3)(C), G.S.
27. On January 27, 2010, counsel for the
respondents informed the Commission that, except for IC-2009-231-295, the
respondents are withdrawing their claim of exemption pursuant to
§1-210(b)(3)(C), G.S., for the records referenced in paragraph 19, above,
because the criminal investigation was no longer pending.
28. It is concluded that except for
the redaction described in paragraph 26, above, the respondents violated the
FOI Act by failing to promptly disclose the records referenced in paragraph
19, above.
29. The respondents claim that
§1-210(b)(10), G.S., exempts some of the records from mandatory disclosure.
(See Index to Records Submitted for In Camera Inspection, attached, and
incorporated herein by reference.)
30. In relevant part, §1-210(b)(10),
G.S., permits the nondisclosure of “communications privileged by the
attorney-client relationship….”
31. 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. 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.
32. 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. . . .
33. Upon careful
examination of the records referenced in paragraph 29, above, it is found
that, with the exceptions described in paragraph 36, below, such records are
either communications transmitted in confidence between attorneys for the
respondents and employees and officials of the respondent DEP relating to
legal advice sought by DEP employees and officials, or are records prepared
by DEP attorneys in furtherance of the rendition of such legal advice,
within the meaning of §52-146r(2), G.S.
34. It is found,
therefore, that the records referenced in paragraph 33, above, are
communications privileged by the attorney-client relationship, within the
meaning of §1-210(b)(10), G.S.
35. It is concluded,
therefore, that the respondents did not violate the FOI Act by withholding
from disclosure the records referenced in paragraph 33, above, by redacting
as indicated on the copies of records submitted for in camera inspection.
36. With respect to
IC-2009-231-45, (line 28 through the end of page 3); IC-2009-231-165;
IC-2009-231-274 (page 2 to end); IC-2009-231-412 (page 1 and page 2, line 22
to end); and wherever duplicate copies of such records occur within the
records submitted for in camera inspection; it is found that such records
are neither communications of legal advice between attorney and client, nor
records prepared in furtherance of the rendition of legal advice.
37. It is concluded,
therefore, that the records described in paragraph 36, above, are not exempt
from disclosure, and the respondents violated the FOI Act by failing to
disclose them.
Although the respondents
violated the FOI Act by failing to disclose the records described in the
findings of fact, above, the Commission recognizes the respondents’ overall
prompt and thorough compliance with the complainant’s request for records,
especially in light of pressing circumstances facing the respondents at the
time of the request.
The Commission appreciates
and commends the respondents for their well-organized, legible, and easily
reviewable Index and in camera records.
Based on the record in this
case, the Commission makes the following order:
1.
The respondents shall forthwith provide the complainant with copies
of records described in paragraphs 17, 28, and 36 of the findings of fact,
above.
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:
Michael Nash
C/o Mark H. Middlen, Esq.
Willinger, Willinger & Bucci, P.C.
855
Main Street
Bridgeport, CT 06604
Commissioner, State of Connecticut,
Department of Environmental Protection;
and State of Connecticut,
Department of Environmental Protection
C/o Melinda M. Decker, Esq.
79 Elm Street
Hartford, CT 06106
____________________________
S. Wilson
Acting Clerk of the Commission
FIC/2009-231FD/sw/2/25/2010
STATE OF CONNECTICUT