FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                Final Decision

 

W. N. Seymour, Jr.,

 

                        Complainant

 

            against                                                                          Docket #FIC 1996-050

 

Ralph G. Elliot, Salisbury Town Attorney,

and Town of Salisbury

 

                        Respondents,                                                    September 11, 1996

 

            The above-captioned matter was heard as a contested case on July 12, 1996, 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.         It is found that the complainant, by letter dated February 13, 1996 requested that the respondent town attorney provide him with a copy of the letter to town of Salisbury (“town”) officials on the proposed National Register listing of the Lakeville Historic District (hereinafter “the letter”).

 

2.         It is found that the respondent town attorney, by letter dated February 13, 1996, denied the February 13, 1996 request, as described in paragraph 1 above, indicating that the rules of professional conduct precluded him from providing the complainant with the letter.

 

3.         Having failed to receive a copy of the letter, the complainant by notice of appeal dated February 1, 1996 and filed with the Commission on February 26, 1996, alleged that the respondent violated the Freedom of Information Act by denying him access to a copy of the letter.

 

4.         The respondent town attorney contends that the town is the client of the private law firm of Tyler, Cooper & Alcorn (hereinafter “the firm”) of which he is a partner; that such law firm is not a public agency and that the requested letter is confidential within the meaning of the attorney-client privilege.

 

 

Docket #FIC 1996-050                                                                                               Page  2

 

 

5.         It is found that the Salisbury Board of Selectmen (“Selectmen”) appointed the firm to serve as town attorney.

 

6.         It is found that the respondent town attorney is the attorney within the firm who is primarily responsible for providing legal services to the town.

 

7.         It is concluded that when acting in the capacity as the town attorney, the firm, or the attorney it designates to act in such capacity, is an authority or official of the town, and therefore a public agency within the meaning of §1-18a(a), G.S.

 

8.         Section 1-19(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 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 1-15.

 

9.         It is concluded that the letter is a public record within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

10.       Section 1-19(b)(10), G.S., permits the nondisclosure of “communications privileged by the attorney-client relationship.”

 

11.       The attorney-client privilege protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice.  Ullmann v. State, 230 Conn. 698, 711 (1994).  It is strictly construed because it “tends to prevent a full disclosure of the truth….  Id. at 710.  The privilege is waived when statements of the communication are made to third parties. Id. at 711; See LaFaive v. DiLorento, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

 

12.       It is found that the letter was written at the request of the First Selectman, and contains the respondent town attorney’s advice to the town on the existence and meaning of a state statute.

 

13.       It is found that the Second Selectman disclosed to a newspaper the town attorney’s advice.

Docket #FIC 1996-050                                                                                               Page  3

 

 

14.       Consequently, it is concluded that the privilege, if any, was waived when the Second Selectman divulged the town attorney’s advice, as described in paragraph 13, above.

 

15.       It is therefore concluded that the letter is not exempt from disclosure pursuant to §1-19(b)(10), G.S.

 

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

 

1.         The respondent town attorney shall forthwith provide the complainant with a copy of the letter, as more fully described in paragraph 1 of the findings, above, in accordance with §1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 1996.

 

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

Acting Clerk of the Commission

Docket # FIC 1996-050                                                                                              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:

 

W.N. Seymour, Jr.

25 West 43rd Street, Room 2102

New York, New York 10036

 

 

Ralph G. Elliot, Esq.

Tyler, Cooper & Alcorn

CityPlace 35th Floor

Hartford, CT 06103-3488

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

                                                                                    Acting Clerk of the Commission