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Final Decision FIC2011-282
In the Matter of a Complaint by
William Burke, Esq.,
Docket #FIC 2011-282
Michael Larobina, Director,
Office of Legal Affairs,
City of Stamford; and
City of Stamford,
March 14, 2012

The above-captioned matter was heard as a contested case on December 5, 2011, at which time the complainant and the respondents appeared and stipulated that the only issue remaining in the case was the correctness of redactions to a certain record sought by the complainant. The record was submitted for an in camera inspection, and the parties agreed that a decision could issue based on the evidence of that record alone.
 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.  By letter of complaint filed June 1, 2011, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for a public record.
3.  It is found that the complainant made a written request dated May 19, 2011 for a copy of a certain police investigation of the Stamford Animal Control Facility, including references to a nonprofit organization known as Outreach to Pets in Need (“OPIN”). On their index to records submitted for in camera inspection, the respondents describe the investigation as an “Internal affairs division memo to Chief Nivakoff dated 9-9-10 re: animal control shelter.”
4.  It is found that the requested record was provided to the complainant, but with certain redactions that the complainant contests.
5.  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.
6.  Section 1-210(a), G.S., provides in relevant part:
     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.    
7.  Section 1-212(a), G.S., provides in relevant part, “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
8.  It is concluded that the record requested by the complainant is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

9.  The respondents maintain that portions of the record may be withheld pursuant to §§1-210(b)(3)(A), 1-210(b)(3)(G), and 1-210(b)(10) and (G), G.S.
10. Section 1-210(b)(3)(A) and (G), G.S.,  provide that disclosure is not required of:
     Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known,  … or (G) uncorroborated allegations subject to destruction pursuant to section 1-216. [Emphasis added.]
11.  It is found that the requested record reports on an investigation by the Stamford Police Department Internal Affairs Division into three complaints involving the Animal Control Shelter, which is managed by an employee of the Stamford Police Department. Those complaints alleged that OPIN was running its organization out of the shelter; that an OPIN volunteer removed a dog from private property and took the dog to the volunteer’s home; and that someone from the shelter wrote an anonymous threatening letter to a citizen who had applied to adopt a dog.
12.  Although some of the allegations contain an element of criminality, it is found that nothing in the requested report indicates that any crimes were investigated or detected. Rather, the report focuses on the propriety of shelter manager’s actions, none of which are described as criminal.
13.  It is found that the requested report was not compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3)(A) and (G), G.S.
14. It is therefore concluded that the information redacted on page 1 of the report is not exempt from disclosure pursuant to §§1-210(b)(3)(A) or (G), G.S.
15. The respondents contend the remaining redactions are permitted pursuant to §1-210(b)(10), G.S., which provides that disclosure is not required of “communications privileged by the attorney-client relationship.”
16.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, 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.
17.  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. . . .
18.  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.
19. After a careful review of the in camera records, it is found that the redacted portions of the requested record identified by the respondents as privileged refer only to the fact that advice had been sought. None of the substance of the advice is contained in the requested record.

20. The mere fact that a meeting takes place between an attorney and his client does not constitute a communication and such information is not privileged for that reason. Ullmann v. State, 230 Conn. 698, 712 (1994);  see also State v. Yates, 174 Conn. 16, 19-20 (1977). ("In its questioning of [the attorney], the state did not seek the substance of any communication that [the attorney] may have had with his client." In State v. Manning, 162 Conn. 112, 120 (1971), our Supreme Court concluded that the attorney-client privilege had not been violated when the defendant's previous attorney was asked whether he had had "certain conversations with [the defendant]" and "where were those conversations held.”
21. The Commission believes that the mere fact that advice has been sought from an attorney is not, in terms of a privilege analysis, legally distinguishable from the fact that a meeting took place between an attorney and his client.
22. It is therefore concluded that the redacted portions of the requested record are not privileged.
23.  It is also concluded that the respondents violated §1-210(a), G.S., by withholding an unredacted copy of the requested investigation report.

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 an unredacted copy of the requested records, free of charge. 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 2012.
Cynthia A. Cannata
Acting Clerk of the Commission
William Burke Esq.
1432 Post Road
Fairfield, CT  06824
John T. Forrest, Esq.
255 Main Street
First Floor
Hartford, CT  06106
Michael Larobina, Director, Office of Legal Affairs,
City of Stamford; and City of Stamford
c/o Burt Rosenberg, Esq.
Assistant Corporation Counsel
Office of Legal Affairs
City of Stamford
P.O. Box 10152
Stamford, CT  06904
Cynthia A. Cannata
Acting Clerk of the Commission