FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Brian Clemow,
Complainant
against Docket #FIC 90-84
State of Connecticut Department of Labor, Board of Mediation and Arbitration
Respondent February 27, 1991
The above-captioned matter was heard as a contested case on June 18 and 19, 1990, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket #FIC 90-85, Brian Clemow v. Office of the Attorney General.
On June 19, 1990, the disputed records were submitted to the Commission for in camera inspection.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated March 2, 1990 and filed with the Commission on March 5, 1990, the complainant appealed to the Commission, alleging that the respondent denied his February 14, 1990 request for certain records.
3. It is found that the complainant by letter dated February 14, 1990 requested from the respondent copies of the following records:
a. the complete agenda of the respondent's November 20, 1989 meeting;
b. a complete transcript of that meeting, including a transcript of any executive session;
c. the minutes of that meeting; and
d. any and all memoranda, letters, advisory opinions and recommendations or reports issued by the Attorney General's office to the respondent on or after July 1, 1989, concerning the scope, application, or interpretation of 7-473(c), G.S.
Docket #FIC 90-84 Page 2
4. It is found that the complainant sought records pertaining to the respondent's decision to reject his claim concerning the interpretation of a statute, 7-473(c), G.S., governing the mandatory arbitration of a labor dispute between the complainant's client and a municipal employee organization.
5. Under cover of a letter dated January 31, 1990, the respondent provided the complainant copies of the requested documents, but redacted from them information it considered exempt from disclosure.
6. It is concluded that all of the requested records are public records within the meaning of 1-18a(d), G.S.
7. At hearing, the complainant withdrew that portion of his request which could be interpreted as seeking records concerning matters other than the issue described in paragraph 4, above.
8. The respondent maintains that the redacted portions of the requested records constitute communications privileged by the attorney-client relationship, and therefore are permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
9. It is found that the redacted portions of the requested records consist of:
b. a September 27, 1989 memorandum from the respondent's acting board administrator to the Attorney General's office describing the complainant's claim as referenced in paragraph 4, above, outlining the surrounding factual circumstances of the labor dispute, and requesting advice as to the application of the disputed statute;
b. a five-line portion of the transcript of the respondent's October 26, 1989 meeting indicating in general terms the research being done by the Attorney General's office for the respondent regarding the issue referenced in paragraph 4, above;
c. portions of the transcript of the respondent's November 20, 1989 meeting, consisting of (i) a three-line segment on page 8, (ii) a four-line segment on page 8, (iii) a two-line segment on page 12, (iv) a one-line segment on page 12, and (v) a one-line segment on page 13, all of which describe the advice of the Attorney General's office; and
d. four lines of a paralegal's handwritten notes reflecting the conclusion of the Attorney General's office regarding the advice sought by the respondent.
Docket #FIC 90-84 Page 3
10. It is found that the respondent sought legal advice from the Attorney General's office in confidence, and intended its discussions of the advice to be confidential.
11. It is found that all of the disputed redactions constitute communications relating to the advice provided by the Attorney General's office.
12. The complainant maintains that the attorney-client privilege is not applicable to the records at issue, because the respondent is not a party to the underlying labor dispute.
13. It is concluded, however, that the assertion of the attorney-client privilege is not limited to clients who are parties to disputes.
14. The complainant also maintains that the respondent waived any attorney-client privilege by discussing the advice at its October 26 and November 20 meetings without convening in executive session.
15. It is found, however, that the complainant offered no evidence to prove that persons other than the respondent and its agents were present at the discussions referenced in paragraph 14, above.
16. It is concluded therefore that the respondent did not waive the attorney-client privilege, and that the requested records are permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
17. The Commission notes that it fails to understand what legitimate purpose is served by withholding the requested records, or how the respondent could be disadvantaged, or the complainant advantaged, by their disclosure. However, questions of specific harm or prejudice are not properly determinative of the scope of 1-19(b)(10), G.S., and the Commission may not substitute its discretionary judgment for the respondent's regarding whether to disclose records permissibly exempt from disclosure pursuant to 1-19(b)(10), G.S.
18. Having concluded that the disputed records are permissibly exempt pursuant to 1-19(b)(10), G.S., it is unnecessary to consider the respondent's alternative claim that the records should not be disclosed pursuant to 1-19b(b)(1), G.S.
Docket #FIC 90-84 Page 4
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 February 27, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-84 Page 5
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:
BRIAN CLEMOW
c/o Mark K. Ostrowski, Esq.
Shipman & Goodwin
799 Main Street
Hartford, CT 06103
STATE OF CONNECTICUT, DEPARTMENT OF LABOR, BOARD OF MEDIATION AND ARBITRATION
c/o Beth Z. Margulies
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06106
Tina C. Frappier
Acting Clerk of the Commission