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Final Decision FIC2011-124
In the Matter of a Complaint by
FINAL DECISION
The Connecticut Resources
Recovery Authority,
     Complainant
     against
Docket #FIC 2011-124
Chief Executive Officer,
The Metropolitan District;
and The Metropolitan
District Commission,
     Respondents
February 8, 2012

The above-captioned matter was heard as a contested case on August 25, 2011, 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 §1-200(1), G.S.
2.   It is found that, by letter dated February 10, 2011, the complainant requested that the respondents provide it with copies of the following twenty-five categories of records:
     1. All documents concerning the selection and/or exclusion of the specific parts of the FAR System [or FARS1] that the MDC is considering adopting pursuant to the authority granted to it by section 1(g) of Connecticut Special Act No. 08-9, including, without limitation, documents containing any explanation, justification or reason for selecting or excluding any part of the FAR System.

1
FARS stands for the Federal Acquisition Regulations System and is a set of regulations that are used by the federal government in procuring goods and services on behalf of federal agencies.

     2. All documents constituting communications among and between any commissioner, employee, or consultant of the MDC and R. Bartley Halloran concerning the adoption or exclusion by the MDC of parts of the FAR System pursuant to section 1(g) of the Connecticut Special Act No. 08-9.
     3. All documents concerning the interpretation of the statement in the first paragraph of page five of the Contractor Diversity Report that the legislature authorized in the MDC to “adopt, by ordinance” [sic] one or more of the procedures set forth in the Federal Acquisition Regulations. . . .,” including, without limitation, documents setting forth the justification(s) for adopting anything less than the entire FAR System.
     4. All documents concerning the benefits and/or cost (financial or otherwise) to the MDC of adopting parts of the FAR System pursuant to the authority granted under section 1(g) of Connecticut Special Act No. 08-9.
     5. All documents concerning the financial impact on the MDC of adopting parts of the FAR System in lieu of the competitive bidding system currently governing MDC procurement practices and procedures.
     6. All documents concerning the MDC’s reasons for replacing, in whole or in part, the current competitive bidding system employed by the MDC with the FAR System, or any portion thereof.
     7. All documents constituting communications by any commissioner, employee, or consultant of the MDC expressing concern or raising any question about the MDC transitioning from the competitive bidding system presently in place to a procurement system based on adopting parts of the FAR system.
     8. All documents containing any statement or representation supporting the exercise of the authority granted to the MDC pursuant to section 1(g) of Connecticut Special Act No. 08-9, notwithstanding the conclusion by MDC legal counsel in the Contractor Diversity Report that “there is currently insufficient evidence to demonstrate a compelling governmental need for developing a gender or race-specific program to promote M/WBE participation in MDC contracting.”
     9. All documents relied upon or considered in preparing and/or producing the Contractor Diversity Report.
     10. All documents reflecting the comments, mental impressions, thoughts, responses, concerns and/or opinions of any MDC commissioner or employee concerning the contractor Diversity Report.
     11. [There is no request number 11 in the request for records]
     12. All documents prepared by MCI concerning the Diversity Study (other than the Diversity Study itself).
     13. All documents concerning the MDC’s engagement of Franklin M. Lee, Esq., to provide assistance to the MDC in the development of race-and gender-neutral means to enhance contract participation [of] small and local business enterprises.
     14. All documents prepared by Franklin M. Lee, Esq., or any person acting under the direction of Mr. Lee, for the MDC in connection with his engagement by the MDC.
     15. All documents constituting communications between the MDC and Franklin Lee, or any person acting on his behalf.
     16. All minutes of meetings of the MDC task force chaired by Robert E. Moore concerning the MDC Procurement Policy.
     17. All documents reviewed by the MDC task force chaired by Robert E. Moore concerning the MDC Procurement Policy.
     18. All documents created by, or on behalf of, the MDC task force chaired by Robert E. Moore concerning the MDC Procurement Policy.
     19. All documents constituting communications by any member of the FARS Subcommittee concerning the MDC Procurement Policy.
     20. All minutes of meetings of the FARS Subcommittee.
     21. All documents created by, or on behalf of, the FARS Subcommittee.
     22. All documents, including, by not limited to, invoices and bills, constituting a request to the MDC for payment by any attorney, consultant or other third-party for services provided in connection with the MDC’s development of a procurement program or policy based on the FAR system.
     23. All documents evidencing the payment by the MDC of monies to any attorney, consultant or other third-party for services provided to the MDC in connection with the MDC’s development or a procurement program or policy based on the FAR system.
     24. All documents concerning any strategic initiatives proposed, considered, developed and/or implemented since January 1, 2008 concerning the collection, disposal, treatment and/or management of municipal solid waste or the creation of any entity having such purposes.
     25. All documents evidencing the expenditure of monies by the MDC pursuant to the line items in the Proposed 2008 and 2009 Capital Improvement Budgets for “Long Term Strategic Initiatives.” 
3. It is found that, by separate emails both dated February 11, 2011, the respondents acknowledged the complainant’s request for records. 
4. It is found that, in the first email, the respondent agency’s District Counsel, R. Bartley Halloran, informed the complainant that the adoption of the FAR System was a significant task, accomplished primarily through the respondent agency’s legal counsel.  It is further found that Attorney Halloran extended the following offer to the complainant in the email:  “I would invite you to sit down with me and discuss how and why the MDC adopted the FARS.”   It is further found that, in response to this email, the complainant acknowledged that the production of the requested records could involve some difficultly, and stated that it looked forward to receiving the records within 30 days. 
5. It is found that the respondents’ second email indicated that, to the extent that the records were not exempt from disclosure under the Freedom of Information (“FOI”) Act, the records would be produced to the complainant.  The respondents further stated that, as the records became available, the respondents would notify the complainant of such availability.
6. By letter dated and filed March 11, 2011, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act by denying it access to public records.  In the appeal, the complainant noted that it had not received any additional communications from the respondents since the second February 11, 2011 email, referred to in paragraph 5, above.  
7. It is found that, by letter dated August 10, 2011, the respondents informed the complainant that the following categories of records were available for the complainant’s review on the respondent agency’s website:  a) Disparity Study Analysis; b) Diversity Subcommittee Meeting Minutes; c) Miller3 [sic] Presentation; d) Board Meeting Minutes; e) Diversity Study; and f) General Ordinances of the District Board of the Metropolitan District Commission.  With respect to additional records in their possession, the respondents informed the complainant that these records were exempt from disclosure as privileged attorney-client communications.
8. It is found that, by letter dated August 24, 2011, the respondents notified the complainant that it had discovered an additional document, not subject to the attorney-client privilege, and provided such document to the complainant.
9. On August 24, 2011, the respondents filed a Memorandum in Opposition to the complainant’s appeal to the Commission.  In the memorandum, the respondents contend 1) that they do not have any records responsive to requests 3, 12, 16, 18, 19, 20, 21, and 24, referred to in paragraph 2, above; 2) that they provided the complainant all of the records in their possession with respect to requests 8, 9, 10 and 25, referred to in paragraph 2, above; 3) that the records responsive to the remaining requests for records (namely, requests 1, 2, 4, 5, 6, 7, 13, 14, 15, 17, 22 and 23), were privileged attorney-client communications; and 4) that they properly acknowledged the  request and provided the complainant with all non-exempt records in a timely manner, given the complexity of the requests. 
10. 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.
11. 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
12. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
13. It is found that, to the extent that the respondents maintain the records referenced in paragraph 2, above, such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
14. Section 1-210(b)(10), G.S., permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.”
15. The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  The 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.
16. 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. . . .
17. 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.
18. It is found that, in 2008, by Special Act 2008-09 (the “special act”), the General Assembly amended the respondent agency’s charter, permitting the respondent agency to adopt the FARS as its own procurement policy.  It is found that the respondent agency began the process of deciding which parts of the FARS to adopt subsequent to the enactment of the special act, and, at this point, has not adopted all of the FARS, but rather has adopted parts of the FARS.  It is found that the request for records in this case focuses on the process by which the respondents determined which parts of the FARS to adopt for the agency.  It is found that the process of determining which parts of the FARS to adopt was assigned to the respondent agency’s legal staff, and was accomplished by such staff in consultation with people in the field, such as engineers and other consultants, as well as with the respondent agency’s administrative and procurement staff.  Finally, it is found that whether the special act permits the respondent agency to adopt only those parts of the FARS that it desires, or whether it instructs that the agency must adopted the entire FARS is a legal question, the answer to which is outside the jurisdiction of this Commission. 
19. With respect to the respondents’ search for responsive records, it is found that Attorney Halloran brought the complainant’s request for records to the respondent agency’s next scheduled legal meeting.  It is found that Attorney Halloran instructed those present at the meeting to search for, and instruct their respective staffs to search for, records responsive to the complainant’s request.  It is found that the respondents searched for responsive records at the respondent agency’s headquarters, as well as in the offices of outside counsel.  It is further found that the respondents determined that there were no responsive records maintained in off-site storage.  Finally, it is found that the respondents searched both electronic and hardcopy files for responsive records. 
20. On November 1, 2011, the respondents submitted the records referred to in paragraph 2, above, to the Commission in a binder for an in camera inspection (hereinafter the “in camera records”).  Such in camera records shall be identified as IC-2011-124-1 through IC-2011-428.
21. In addition to the binder containing the in camera records, the respondents also submitted two letters.  The first letter is a one-page document dated October 24, 2011, from the respondent agency’s assistant district counsel to the complainant.  It has been marked as respondents’ post-hearing exhibit 1.  In this letter, counsel indicates that he has found additional non-exempt records responsive to the complainant’s requests numbered 1, 3, 6, 9, 10, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, and 25, referred to in paragraph 2, above, and that such records will be made available to the complainant at the respondent agency’s headquarters.  This letter also indicates that the respondents were unable to find any records responsive to complainant’s requests numbered 2, 4, 5, 7, 8, 19, 20, and 21, referred to in paragraph 2, above.  The second letter is a two-page document dated October 31, 2011, from the respondents to the hearing officer.  This letter lists names and titles of key employees, including attorneys, of the respondent agency.  This letter has been marked as respondents’ post-hearing exhibit 2. 
22. Upon a review of the in camera records, it was determined that the respondents’ submission did not contain any records responsive to the complainant’s requests numbered 22 and 23 (specifically, records of invoices, bills and other evidence of payment by the respondent agency to attorneys, consultants or other third-parties in connection with the respondent agency’s development of a procurement program or policy based on the FARS), referenced in paragraph 2, above. 
23. By order dated November 28, 2011, the hearing officer requested that the respondents clarify whether a representation in post-exhibit 1, referred to in paragraph 21, above—to wit, that “the MDC has identified non-exempt public records that are responsive to items #s. . . 22 [and] 23. . .,” meant that such records had been provided, without redaction, to the complainant.”
24. By letter dated December 1, 2011, the respondents filed a letter with the Commission confirming that all of the records responsive to the complainant’s requests 22 and 23 had been provided to the complainant, without redaction.  The respondents’ December 1, 2011 letter has been marked as respondents’ post-hearing exhibit 3.
25. After a careful review of the in camera records, it is found that the records evidence substantive communications that occurred by way of email between a public agency client and the agency’s various attorneys.  It is further found that these communications occurred because the respondent agency solicited its attorneys’ advice on how to adapt and implement the federal FARS to the respondent agency’s business.  It is further found that, for the purpose of advising the respondent agency client, the respondent’s attorneys consulted with outside professionals.
26.  It is further found that in camera records evidence written communications transmitted in confidence between counsel and public officials or other employees acting within the scope of their employment with the respondent agency.  It is further found that the records relate to legal advice sought by the public agency from their attorneys, received by the public officials acting on behalf of the agency from their attorneys.  It is further found that the communications, in some instances, included documents from outside consultants, which documents were relevant and necessary to the privileged communications.  Finally, it is found that the respondents did not waive the privilege. 
27. It is therefore concluded that the in camera records identified in paragraph 20, above, fall within the protection of the attorney-client privilege and are exempt from disclosure. 
28. It found, however, that the amount of time it took between the request for records in this case, which occurred on February 10, 2011, (see ¶ 2), and the final provision of records to the complainant, which occurred on or around October 24, 2011, (see ¶ 21, above), was not prompt. 
29. It is therefore concluded that the respondents violated the promptness requirement of §§1-210(a) and 1-212, G.S.

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 promptness requirements of §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8,  2012.
__________________________
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:
The Connecticut Resources Recovery Authority
c/o Richard H. Goldstein, Esq. and Daniel Klau, Esq.
McElroy, Deutsch, Mulvaney & Carpenter, LLC
One State Street
14th Floor
Hartford, CT  06103-3102
Chief Executive Officer, The Metropolitan District; and
The Metropolitan District Commission
c/o William H. Clendenen, Jr., Esq. and Kevin Shea, Esq.
Clendenen & Shea, LLC
400 Orange Street
New Haven, CT  06511
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-124/FD/cac/2/8/2012