FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 7, 2010, at which time 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 February 2, 2010, the complainant made a written request to the respondents for all e-mails that referenced the complainant sent or received by three named individuals from May 2004 through January 28, 2010.

 

3.      It is found that on February 5, 2010 the respondents acknowledged the complainant’s request; however, the complainant did not receive the letter until after February 10, 2010.

 

4.      By letter filed on February 11, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to respond to her request, described in paragraph 2, above. 

 

5.      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, or to which a public agency is entitled to receive a copy by law…whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. 

 

6.      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.

 

7.      Section 1-212 (a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.      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.

 

9.      It is found that on April 6, 2010 the respondents provided 141 pages of records, some with redactions.   

 

10.   It is found that, upon the request of the complainant in August, 2010, the respondents narrowed the redactions and disclosed more information from the 141 pages.

 

11.   At the conclusion of the hearing in this matter, the respondents submitted an unredacted copy of the records described in paragraph 9, above, for in camera inspection, which records are hereby identified as IC-2010-092-1 through IC-2010-092-52.

 

12.   The respondents claim that §1-210(b)(10), G.S., exempts some of the records from disclosure.  Section 1-210(b)(10), G.S., provides that mandatory disclosure is not required of “communications privileged by the attorney-client relationship….”

 

13.   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.

 

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.   Upon careful examination of the records claimed to be exempt pursuant to §1-210(b)(10), G.S., as referenced in the Index to Records Submitted for In Camera Inspection (“Index”), it is found that such records are communications transmitted in confidence between attorneys for the respondents and employees and officials of the respondents relating to legal advice sought by the respondents’ employees and officials, within the meaning of §52-146r(2), G.S.

 

17.   It is concluded that the records referenced in paragraph 16, above, constitute communications privileged by the attorney-client relationship within the meaning of §1-210(b)(10), G.S.   It is concluded, therefore, that such records are exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents did not violate the FOI Act by withholding such records from disclosure.

 

18.   The respondents also claim that §1-210(b)(1), G.S., exempts some of the records from mandatory disclosure.  Section 1-210(b)(1), G.S., provides that mandatory disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

 

19.   Section 1-210(e), G.S., provides in relevant part:

 

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….

 

20.     Upon careful examination of the records claimed to be exempt pursuant to §1-210(b)(1), G.S., as referenced in the Index, it is found that the redactions claimed as to IC-2010-092-7, 9, 25, 26, 30, 31, 32, 41, 42,  are not preliminary notes or drafts, within the meaning of §1-210(b)(1), G.S.; “rather, [each] was a completed document to be used by the [respondents] in the course of [their] public duties. [Each] document was not expected to be modified nor did it contain information not required or germane to its ultimate purpose.” (Internal quotation omitted.) Strillacci v. FOI Commission, Superior court, judicial district of Hartford-New Britain at New Britain, Docket No. CV084018120, *7 (April 20, 2009) (2009 Conn. Super. LEXIS 1046).    

 

21.   It is further found that the records referenced in paragraph 20, above, are intra-agency records comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S., and that none is 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 the respondents.

 

22.   It is concluded, therefore, that the records referenced in paragraph 20, above, are not exempt from disclosure and the respondents violated the FOI Act by failing to provide them to the complainant.

 

23.   With respect to IC-2010-092-43 through IC-2010-092-50, it is found that the respondents redacted preliminary drafts, and that the respondents determined that the public interest in withholding such documents clearly outweighed the public interest in disclosure. 

 

24.   It is found, however, that the preliminary drafts were provided to respondents’ Director of Labor Relations for review and decision; such intra-agency records comprised part of the process by which governmental decisions and policies were formulated, within the meaning of §1-210(e)(1), G.S.

 

25.   It is concluded, therefore, that the records referenced in paragraph 23, above, are not exempt from disclosure and the respondents violated the FOI Act by failing to provide them to the complainant.

 

26.   With respect to IC-2010-092-51, the respondents claimed no exemption for such record.

 

27.   With respect to IC-2010-092-52, it is found that the record concerns medical information of another employee of the respondents.  It is found that the complainant stated that she did not seek such information; the Commission, therefore, declines to order disclosure of such record.

 

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

 

1.       The respondents shall provide forthwith to the complainant the records referenced in paragraphs 20 and 23 of the findings of fact.

 

Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 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:

 

Priscilla Dickman

2523 Boston Turnpike

Coventry, CT  06238

 

Director, Health Affairs Policy Planning, Department of Community Medicine and Health Care, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center

c/o Donald R. Green, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT  06030-3803

 

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-092/FD/cac/12/21/2010