FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 21, 2011, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the matter was consolidated with the Docket #FIC 2010-660; Scott Jelescheff and the International Brotherhood of Police Officers v. Chief, Police Department, Town of Avon; and Police Department, Town of Avon.

 

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, by hand written note submitted in early October 2010, the complainants made a request for a copy of a report produced by Frank Rudewicz concerning Police Chief Mark Rinaldo.

 

3.  It is found that, by letter dated October 15, 2010, the respondents acknowledged the complainants’ request for records, but indicated that the records were exempt from disclosure as privileged attorney-client communications.   

 

4.  By letter dated and filed October 28, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their requests for records. 

 

5.  Section 1-200(5), G.S., provides:

 

“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.  Section 1-210(a), G.S., provides in relevant part that:

 

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 . . .  (3) receive a copy of such records in accordance with section 1-212.

 

7.  Section 1-212(a), G.S., provides in relevant part that:

 

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

 

8.  It is concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a) G.S., and that copies of such records must be provided in accordance with §§1-210(a), and 1-212(a), G.S., unless the records, or portions of the records, are exempt from disclosure. 

 

9.  It is found that, in early 2010, the Avon police union expressed to the Town of Avon a lack of confidence in the managerial ability of the Chief of Police of the town. 

 

10. It is found that the town is represented by the law firm of Murtha Cullina, LLP. 

 

11. It is found that the town turned to its attorneys for advice on how to handle this situation.  It is further found that, in order to facilitate the provision of legal advice to their client, attorneys from Murtha Cullina retained an investigator by the name of Frank Rudewicz.  It is found that Mr. Rudewicz was retained by Murtha Cullina to investigate the matter concerning the Chief of Police. 

 

12. It is found that, subsequent to his investigation, Investigator Rudewicz produced a written report to the town’s attorneys summarizing his findings. 

 

13. It is found that, with regard to the report referred to in paragraph 12, above, the only individuals that have received the report are attorneys from Murtha Cullina and their clients—that is, the town manager, and the town council.   

14. The respondents contend that the report is exempt from disclosure pursuant to §1-210(b)(10), G.S., which permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.” 

 

15.  At the conclusion of the hearing, the respondents submitted the report to the Commission for an in camera inspection (hereinafter the “in camera records”).  The in camera records consist of one package totaling eleven pages.  The hearing officer reviewed the in camera submission. 

 

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

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. . . .

 

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. In Olson v. Accessory Controls and Equipment Corporation, 254 Conn. 145 (2000), the Supreme Court held that the attorney-client privilege extended to a report that was compiled by an environmental consultant, and the related communications, because the report was produced and the communications were made in confidence for the purpose of obtaining legal advice.  See Olson, 254 Conn. at 160 (the attorney-client privilege “may attach to technical reports communicated to an attorney if done so for legal opinion or interpretation”) (emphasis in original) (citations and internal quotation marks omitted).  

 

20. In addition, in Shew v. Freedom of Information Commission, 245 Conn. 149 (1998), the sole issue on appeal was whether certain documents created by an attorney who had been retained by the town of Rocky Hill to conduct an investigation of the town’s police chief were subject to disclosure under the FOI act.  See Shew, 245 Conn. at 151.  The Court held that the report at issue was exempt from mandatory public disclosure based upon the portion of §1-210(b)(10), G.S., which recites the attorney-client privilege.  Id. at 160. 

 

21. At the hearing, the parties disputed whether a promise had been made to the union by the respondents to release the Rudewicz report upon its completion.  The complainants testified that, at the time they believed a promise had been made to provide them with a copy of the final report, it was their understanding that the respondent town was hiring the investigator, not the attorneys at Murtha Cullina.  Ultimately, it is found, however, that Investigator Rudewicz was hired by Murtha Cullina to conduct a factual investigation and to report his findings to Murtha Cullina; he was not hired by the respondents. 

 

22. The complainants also argue that in disclosing an October 14, 2010 disciplinary letter that was issued by the town to the chief of police subsequent to the Rudewicz investigation, and in commenting on such letter to the press, the respondents waived the attorney-client privileged with regard to the Rudewicz report itself.  A very similar waiver argument was raised in McLaughlin v. Freedom of Information Commission, 83 Conn. App. 190 (2004).  In McLaughlin, the complainants therein argued that, by publishing a letter written by outside counsel on a matter concerning the open beach issue in Greenwich, the respondent town had waived the attorney-client privilege with respect to all documents on the same subject.  See id. at 195.  The Court determined, however, that because the disclosed letter was meant to be made public and because it did not comment on the underlying advice given by the attorneys to the client, the attorney-client privilege had not been waived with respect to the other documents.  See id. at 198 (finding that “[t]he disclosed document does not render advice on strategy, comment on an adverse party’s actions, make recommendations on a particular course of action or make similar tactical recommendations or decisions.  It contains no legal advice for the future and was not intended to be confidential.)

 

23.  In this case, because there can be no doubt that that the Rudewicz report was submitted confidentially by Investigator Rudewicz to the attorneys at Murtha Cullina for the purpose of facilitating the provision of legal advice to the town, and because the report was never disclosed in a manner that could be construed as waiver, it is concluded that the report is an attorney-client privileged communication within the meaning of §1-210(b)(10), G.S.  It is further concluded that the report is exempt from mandatory disclosure and that the respondents did not violate §1-210(a), G.S., when they denied the complainants’ request for a copy of the report.

 

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

1.  The complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 27,  2011.

 

 

__________________________

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:

 

Len Besthoff and WFSB-TV

333 Capital Boulevard

Rocky Hill, CT  06067

 

Town Clerk, Town of Avon; and

Town of Avon

c/o Michael C. Harrington, Esq.

Murtha Cullina LLP

185 Asylum Street

Hartford, CT  06103

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-679/FD/cac/8/1/2011