FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on November 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. The respondents are public agencies within the meaning of § 1-18a(a), G.S.

2. It is found that by letter dated June 3, 1996, the complainant requested that the respondents provide him with access to inspect or to receive a copy of seventeen (17) categories of records (hereinafter "requested records" or "requested record item #s 1 through 17"), including telephone bills, legal bills, employment records of the former Executive Director of the New Britain Housing Authority (hereinafter "Authority"), budgets, a petition, financial audits and minutes.

3. Having failed to receive the requested records the complainant, by letter dated June 10, 1996 and filed on June 14, 1996, appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him access to the requested records.

4. By letter dated and filed with the Commission on November 12, 1996, the complainant requested that the Commission impose civil penalties against the respondents.

5. It is found that the respondents maintain records responsive to the complainant’s June 3, 1996 request, described in paragraph 2 of the findings, above and such records are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

6. It is found that by letter dated August 20, 1996, the respondents informed the complainant that they were reviewing the requested legal bills for privileged information, and that they would provide the complainant with the requested records by August 28, 1996.

7. It is found that on September 17, 1996, the respondents provided the complainant with a copy of records responsive to a portion of his request, however, no records responsive to requested record item #s 4, 6, 9, 14, 15 and 16 were provided, and legal bills responsive to requested record item #s 2 and 17 were provided with portions redacted.

8. With respect to requested record item #s 6, 14, 15 and 16, at the hearing on this matter, the respondents provided the complainant with a copy of records responsive to record item # 6 (with the exception of the 1994 scores), and record item #s 14, 15 and 16.

9. With respect to requested record item # 4, it is found that the respondents maintain a memorandum from Arnold and Associates which they have not provided to the complainant.

10. With respect to requested record item # 9, the respondents indicated at the hearing on this matter that they believed no records exist responsive to such request.

11. With respect to requested record item #s 2 and 17, the complainant contends that the redactions to the legal bills described in paragraph 7 of the findings, above, may be improper and also that the respondents failed to provide him with copies of legal bills from Silvestri, Daley and Delaney, Halloran & Sage, Gaffney and Associates and Sach, Spector & Barrett.

12. Following the hearing on this matter, the respondents submitted to the Commission for an in camera inspection, copies of the redacted legal bills described in paragraphs 7 and 11 of the findings, above, as well as copies of the unredacted version of such bills.

13. It is found that the in camera records are legal bills from Sledzik & McGuire, Robinson & Cole, Pepe & Hazard and Shipman & Goodwin.

14. The respondents contend that certain redacted portions of the legal bills are exempt from disclosure pursuant to § 1-19(b)(4), G.S., and other portions pursuant to § 1-19(b)(10), G.S.

15. Section 1-19(b)(4), G.S., permits the nondisclosure of "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."

16. It is found that the complainant represents a client who is involved in pending federal litigation with the Authority.

17. It is found however, that the redacted portions of the legal bills do not constitute records of "strategy and negotiations" within the meaning of § 1-19(b)(4), G.S.

18. It is therefore, concluded that the redacted portions of the legal bills are not exempt from disclosure pursuant to § 1-19(b)(4), G.S.

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

20. The exemption for attorney-client privileged communications contained in § 1-19(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived. Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

21. 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, supra.

22. It is found that the respondents failed to prove that the redacted portions of the legal bills reveal communications made in confidence by the Authority and/ or legal advice containing such communications.

23. It is therefore, concluded that the redacted portions of the legal bills are not privileged communications within the meaning of § 1-19(b)(10), G.S., and are therefore, not exempt from disclosure.

24. It is further concluded that the respondents violated § § 1-15(a) and 1-19(a), G.S., when they failed to provide the complainant with prompt access to all of the requested records.

25. The Commission in its discretion declines to impose a civil penalty in this matter.

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

1. The respondents shall forthwith provide the complainant with a copy of the memorandum described in paragraph 9 of the findings, above, the 1994 scores described in paragraph 8 of the findings, above, the unredacted legal bills reviewed in camera, and any other legal bills from Silvestri, Daley and Delaney, Halloran & Sage, Gaffney and Associates and Sach, Spector & Barrett, responsive to the complainant’s June 3, 1996 record request. If no bills from such firms exist, the respondent executive director (or the acting executive director), shall forthwith provide the complainant with an affidavit attesting to whether legal bills from such firms existed and have been destroyed, the date of destruction and the reason for such destruction. Such affidavit shall also attest to whether records responsive to the complainant’s record request item # 9, referred to in paragraph 10 of the findings, above, existed and have been destroyed, the date of destruction and the reason for such destruction.

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

Approved by Order of the Freedom of Information Commission at its regular meeting of March 19, 1997.

__________________________
Elizabeth A. Leifert
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:

George C. Springer, Jr., Esq.
Ferguson, Doyle & Springer, PC
99 West Main Street
New Britain, CT 06051

Executive Director, New Britain Housing Authority, and
Chairman, New Britain Housing Authority
c/o Patricia E. McCooey, Esq.
Robinson & Cole
One Commercial Plaza
280 Trumbull Street
Hartford, CT 06103-3597

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-229/FD/eal/03251997