FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

                                               

The above-captioned matter was consolidated for hearing with Docket # FIC 2010-007, also captioned Daniel Schwartz v. Assistant Director of Compliance/Privacy, State of Connecticut, University of Connecticut, Office of Audit, Compliance and Ethics; and State of Connecticut, University of Connecticut, Office of Audit, Compliance and Ethics. Both cases were heard as contested cases on June 22, 2010, at which time both the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaints.

 

After consideration of the entire record, the following facts are found and additional 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 email dated December 2, 2009, the complainant made a request to the respondents for electronic copies of all emails and other “computer documents” concerning the complainant from January 1, 2008 to December 1, 2009, and addressed to or sent from seven named individuals.

 

3.  It is found that by letter dated December 3, 2009, the respondents acknowledged the complainant’s request.

 

4.  By letter dated December 31, 2009 and filed with the Commission on January 4, 2010, the complainant appealed to the Commission, alleging that the respondents’ failure to provide requested records violated the Freedom of Information Act (“FOIA”).

 

5.  It is found that on March 10, 2010, March 19, 2010, and April 16, 2010, the respondents provided the complainant with a substantial quantity of records which were responsive to the complainant’s request. The respondent Assistant Director of Compliance/Privacy devoted approximately three weeks of her professional time to compiling this disclosure of records, including her review to identify records claimed to be exempt from mandatory disclosure.

 

6.  At the hearing, the respondents testified that records within the scope of the request were withheld from the complainant based upon five different exemptions from mandatory disclosure. The respondents also agreed to submit the withheld records for an in camera inspection. The complainant agreed to narrow this contested case to records described in paragraph 2 which are to or from Cecile Baccanale (the “requested records”). On July 13, 2010, the respondents submitted the requested records for in camera inspection. The accompanying index claimed the following exemptions for specific in camera records: §§1-210(b)(1), 1-210(b)(4), 1-210(b)(10), 1-210(b)(11), and 1-210(b)(17), G.S. Such records, each containing various numbers of pages, are hereby identified as IC-2010-001-1 through IC-2010-001-33. 

 

7.  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.

 

8.  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. 

 

 

 

 

9.  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;

 

…

 

(4)  Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled;

 

…

 

(10)  Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship;

 

(11)  Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school;

 

…

 

(17)  Educational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g;

 

…

 

(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….

 

10.  It is found that, during the relevant period of time, five attorneys (Michael Sullivan, Ralph Urban, Antoria Howard, Josephine Graff, and Michael Eagen) each provided legal advice to the University of Connecticut concerning the complainant. A proceeding initiated by the complainant before the Commission on Human Rights and Opportunities remained pending on appeal as of the date of the hearing in this contested case. Cecile Baccanale, as Director of the Office of Animal Research Services, received and transmitted emails from and to attorneys providing legal advice to the University of Connecticut concerning the complainant.

 

11.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the attorney-client 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.

 

 12.  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. . . .

 

13.  The Supreme Court 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. Also see Shew v. Freedom of Information Commission, 245 Conn. 149, 159 (1998).

 

14.  Based upon the in camera inspection, it is found that records IC-2010-001-1 through IC-2010-001-14, IC-2010-001-20 through IC-2010-001-29, and IC-2010-001-32 are emails from an employee of the University of Connecticut to an attorney for the University of Connecticut, or emails from an attorney for the University of Connecticut to an employee of the University of Connecticut; that the communications related to seeking legal advice from a professional legal advisor in his or her capacity as such, and that the communications were made in confidence by an agent for the client or the attorney.  

 

            15.  Based upon the in camera inspection, it is found that records IC-2010-001-15 through IC-2010-001-19 are records that disclose strategy concerning pending claims asserted by the complainant, which claims had not been finally adjudicated.

 

            16.  Based upon the in camera inspection, it is found that records IC-2010-001-30 and IC-2010-001-31 contain personally identifiable information related to a student at the University of Connecticut, including the name of the student. The Commission takes administrative notice that such records are maintained by an educational agency, the University of Connecticut being a public institution that is a recipient of funds from the federal government.

 

            17.  Based upon the in camera inspection, it is found that record IC-2010-001-33 is a preliminary draft, marked as a “draft”, memorializing a discussion. A transmittal email for the draft expressly requests the recipient of the email to review and edit the draft. Thus, the draft, which was prepared by a member of the staff, was subject to revision prior to being discussed as a basis for any University of Connecticut decisions. It is also found that the respondents determined that the public interest in withholding IC-2010-001-33 clearly outweighs the public interest in disclosure. 

 

            18.  Based on the finding at paragraph 14, above, it is concluded that records IC-2010-001-1 through IC-2010-001-14, IC-2010-001-20 through IC-2010-001-29, and IC-2010-001-32 are privileged attorney-client communications, which are exempt from mandatory disclosure pursuant to §1-210(10), G.S.

 

            19.  Based on the finding at paragraph 15, above, it is concluded that records IC-2010-001-15 through IC-2010-001-19 are records of strategy concerning pending claims, which are exempt from mandatory disclosure pursuant to §1-210(b)(4), G.S.

 

            20.  Based on the finding at paragraph 16, above, it is concluded that records IC-2010-001-30 and IC-2010-001-31 are educational records containing the names of students, which are exempt from mandatory disclosure pursuant to §§1-210(b)(11) and 1-210(b)(17), G.S.

 

            21.  Based on the finding at paragraph 17, above, it is concluded that record IC-2010-001-33 is a preliminary draft, which is exempt from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S.  

 

            22.  Based upon the conclusions set forth at paragraphs 18 through 21, immediately above, the Commission declines to rule on additional claims of exemption that were asserted for various of the in camera records.

 

23.  It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., when they declined to provide the requested records described at paragraph 6.

 

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

 

            1.  The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2010.

 

 

__________________________

Cynthia A. Cannata

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:

 

Daniel Schwartz

156 Highland Road

Mansfield Center, CT 06250

 

Assistant Director of Compliance/Privacy,

State of Connecticut, University of Connecticut, Office of Audit, Compliance and Ethics; and

State of Connecticut, University of Connecticut, Office of Audit, Compliance and Ethics

c/o Michael J. Sullivan, Esq.

Assistant Attorney General

State of Connecticut, University of Connecticut

343 Mansfield Road, Unit 2177

Storrs, CT  06269-2177

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-001/FD/cac/11/1/2010