FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Steven Edelman,

 

                                Complainant

 

                against                   Docket #FIC 94-424

 

Diane Potvin, Administrative Secretary, Town of Windham and

Walter Pawelkiewicz, Windham First Selectman,

 

                                Respondents                        October 11, 1995

 

                The above-captioned matter was heard as a contested case on July 20, 1995, at which time the complainant and counsel for 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 1-18a(a), G.S.

 

                2.  It is found that on November 18, 1994 the complainant requested that the respondents provide him with access to inspect all affidavits signed by Town of Windham ("The town") employees which referred to the complainant or Marvin Edelman.

 

                3.  By letter dated November 25, 1994 the respondent First Selectman denied the request claiming that no affidavits exist other than those prepared in connection with certain Freedom of Information ("FOI") complaints filed by the complainant against the town which are exempt as records of strategy pursuant to 1-19(b)(4), G.S.

 

                4.  Having failed to receive access to the requested affidavits the complainant appealed to the Commission by letters dated November 25, 1994 and filed with the Commission on December 5, 1994.

 

                5.  It is found that the affidavits at issue were prepared in connection with certain FOI Commission contested cases heard on November 17, 1994, at which time counsel for the respondent attempted to introduce the affidavits, however the FOI Commission hearing officer denied the request and instead requested that the affiants appear at a later date to present their testimony in person.

 

Docket #FIC 94-424                                             Page 2

 

                6.  It is found that the complainant, then on November 18, 1994 visited the respondents' office and requested access to the affidavits, described in paragraph 5, above.

 

                7.  It is found that on June 30, 1995, counsel for the respondents provided the complainant with access to a copy of certain affidavits responsive to the complainant's November 18, 1994 request.

 

                8.  However, the respondents maintain that the affidavits are not public records, and even if they are, they are exempt from disclosure pursuant to 1-19(b)(4) and (10), G.S.

 

                9.  It is found that the affidavits are recorded information prepared and used by a public agency in the conduct of the public's business and therefore constiture public records within the meaning of 1-18a(d), G.S.

 

                10.  Section 1-19(b), G.S., allows an agency to withhold disclosure of:

 

                                (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)  ...communications privileged by the attorney-client relationship.

 

                11.  It is found that the affidavits are not records of strategy but are written declarations of the affiants made under oath.

 

                12.  It is also found that even if the affidavits could be considered a record of strategy, the FOI contested cases have been adjudicated and were final on April 18, 1995.

 

                13.  It is therefore concluded that the affidavits are not exempt pursuant to 1-19(b)(4), G.S.

 

                14.  With respect to the claim of attorney client privilege, it is found that the affidavits are not communications of legal advice or client confidences, but are the sworn statements of various public employees prepared with the intention of being introduced as accurate representations at a FOI Commission contested case hearing.

 

                15.  It is therefore concluded that the affidavits are not privileged communications exempt pursuant to 1-19(b)(10), G.S., and the respondents violated the complainant's rights when it failed to disclose the affidavits promptly.

 

Docket #FIC 94-424                                             Page 3

 

                16.  The Commission in its discretion declines to impose a civil penalty against the respondents.

 

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

 

                1.  Henceforth the respondents shall strictly comply with the disclosure requirements of 1-15 and 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 11, 1995.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 94-424                                             Page 4

 

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:

Steven Edelman

Route 14

Windham Center, CT 06280

 

Diane Potvin, Administrative Secretary, Town of Windham and Walter Pawelkiewicz, Windham First Selectman

c/o Richard S. Cody, Esq.

P.O. Box 425

Mystic, CT 06355

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission