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Final Decision FIC2011-420
In the Matter of a Complaint by
FINAL DECISION
Arthur McNally,
     Complainant
     against
Docket #FIC 2011-420
Martin Overton, Chairman, Zoning
Commission, Town of Woodbury;
Robert Clarke, Vice Chairman, Zoning
Commission, Town of Woodbury; and
Zoning Commission, Town of Woodbury,
     Respondents
April 25, 2012

The above-captioned matter was heard as a contested case on December 15, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with, and the Commission takes administrative notice of, the record in Docket #FIC 2011-425, Thomas Arras v. Martin Overton, Chairman, Zoning Commission, Town of Woodbury; Catherine Adsitt, Town Planner, Town of Woodbury; and Zoning Commission, Town of Woodbury.
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 July 20, 2011, the complainant requested from the respondents copies of certain records “related to zoning regulation 7.5.10.1,” including “all emails, letters (town officials and town lawyers)…drafts and meeting information…since my last request of May 13, 2011.”
3.  It is found that, by letter dated July 22, 2011, the respondents provided records responsive, in part, to the request, described in paragraph 2, above.  However, it is found that the respondents withheld from the complainant two responsive records, a letter dated November 9, 2010, and a memorandum dated June 14, 2011, on the ground that such records are protected by the attorney-client privilege. 
4.  By letter of complaint, dated and filed August 15, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to provide copies of the records described in paragraph 3, above.  In his complaint, the complainant requested that a civil penalty be assessed against the respondents.
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 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 . . . (3) receive a copy of such records in accordance with section 1-212.
7.   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.”
8.  It is found that the records, described in paragraph 3, above, are public records, within the meaning of §1-200(5), G.S.
9.  At the hearing in this matter, the complainant stated that he was satisfied with the response to his request, described in paragraph 3, above, except for the memorandum, dated June 14, 2011 (the June 14 memorandum).  Accordingly, only the denial of the request for such memorandum shall be addressed herein.
10.  At the hearing in this matter, the respondents submitted the June 14 memorandum, for an in camera inspection.  With respect to the respondents’ claim that this record is exempt from disclosure, §1-210(b)(10), G.S., permits an agency to withhold from disclosure records of  “communications privileged by the attorney-client relationship.” 
11.  The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  That 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.
12.  As our Supreme Court has stated, a four part test must be applied to determine whether communications are privileged:  “(1) the attorney must be acting in a professional capacity for the agency; (2) the communications must be made to the attorney by current employees or officials of the agency; (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.”   Lash v. Freedom of Information Commission, 300 Conn. 511, 516 (2011), citing Shew v. Freedom of Information Commission, 245 Conn. 149, 159 (1998).
13.  With regard to the June 14 memorandum, after careful review, it is found that such memorandum is a written legal opinion that was solicited by Catherine Adsitt, the town planner at the time, in the course of her official duties, on behalf of the respondent zoning commission, and was related to items under consideration by the respondent zoning commission. 
14.  It is found that the June 14 memorandum is a communication related to legal advice sought by an employee of the public agency from a professional legal advisor to the agency in his capacity as such, and that the communication was made in confidence.  It is found that the privilege with respect to such record has not been waived.
15.  Thus, it is found that the June 14 memorandum, described in paragraph 3, above, is exempt from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.
16.  Accordingly, it is concluded that the respondents did not violate the FOI Act by withholding the June 14 memorandum, described in paragraph 3, above, from the complainant.   

17.  The Commission declines to consider the complainant’s request for civil penalties against the respondents.
 The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1.  The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 25, 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:
Arthur McNally
56 Orchard Avenue
Woodbury, CT  06798
Martin Overton, Chairman, Zoning
Commission, Town of Woodbury;
Robert Clarke, Vice Chairman, Zoning
Commission, Town of Woodbury; and
Zoning Commission, Town of Woodbury
c/o Richard Roberts, Esq. and
Kenneth R. Slater, Jr., Esq.
Halloran & Sage LLP
One Goodwin Square
225 Asylum Street
Hartford, CT  06103
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-420/FD/cac/4/25/2012