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Final Decision FIC2011-425
In the Matter of a Complaint by
FINAL DECISION
Thomas Arras,
     Complainant
     against
Docket #FIC 2011-425
Martin Overton, Chairman, Zoning
Commission, Town of Woodbury;
Catherine Adsitt, Town Planner, 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 2011-420, Arthur McNally v. Martin Overton, Chairman, Zoning Commission, Town of Woodbury; Robert Clarke, Vice Chairman, Zoning Commission, 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 August 1, 2011, the complainant requested from the respondents a copy of:
     a) “the attorney’s opinion regarding the political sign restrictions in Woodbury’s zoning regulations;
     b) the attorney’s clarification of the above-mentioned opinion; and
     c) the minutes, emails and any correspondence regarding requesting this attorney’s clarification.”
3.  It is found that, by letter dated August 3, 2011, the respondents denied the request, described in paragraphs 2(a) and 2(b), above, on the ground that such records are protected by the attorney-client privilege.  It is found that the respondents provided records responsive to the request described in paragraph 2(c), above, with their August 3 letter.
4.  By letter of complaint, dated August 15, 2011 and filed August 16, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the request for records described in paragraph 2, 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 or certified copy of any public record.”
8.  It is found that the records, described in paragraph 2, above, are public records, within the meaning of §1-200(5), G.S.
9.  At the hearing in this matter, the respondents submitted the records, described in paragraphs 2(a) and 2(b), above, for in camera inspection by the Commission.  It is found that such records consist of a letter, dated November 9, 2010, from Attorney Richard Roberts, of the law firm of Halloran & Sage, addressed to Catherine Adsitt, town planner for the town of Woodbury (the November 9 letter); and a Memorandum, dated June 14, 2011, from Attorney Roberts, to Ms. Adsitt (the June 14 memorandum).  With respect to the respondents’ claim that these records are 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.” 
10.  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.
11.  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).
12.  With regard to the November 9 letter, described in paragraph 2(a), above, after careful review, it is found that such letter is a written legal opinion that was solicited by Ms. 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.  It is further found that the town planner works for the zoning commission in the Town of Woodbury.
13.  It is found that the November 9 letter 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.
14.  However, it is found that a copy of the November 9 letter, described in paragraph 2(a), above, was disclosed by the town planner prior to August 3, 2011, in response to an earlier FOI request made by Arthur McNally. 
15.  “Waiver [of the attorney-client privilege] can occur only if there is knowledge of the existence of the right and the intention to relinquish it.”  Blumenthal v. Kimber Manufacturing, 47 Conn. Supp. 378, 381-382 (2001), citing Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 565 (1972).
16.  Although counsel for the respondents argued at the hearing that the attorney-client privilege was not waived when Ms. Adsitt provided a copy of the November 9 letter to Mr. McNally because the letter was “leaked,” it is found that the respondents failed to offer any evidence at the hearing to support such assertion.
17.  Accordingly, it is found that the privilege that had attached to the November 9 letter had been waived at the time of the denial, described in paragraph 3, above, and that therefore, the November 9 letter, described in paragraph 2(a), above, was not exempt from disclosure pursuant to the provisions of §1-210(b)(10), G.S., at the time of such denial.
18.  The Commission notes that a copy of the November 9 letter was offered as an exhibit in Docket #FIC 2011-420, Arthur McNally v. Martin Overton, Chairman, Zoning Commission, Town of Woodbury; Robert Clarke, Vice Chairman, Zoning Commission, Town of Woodbury; and Zoning Commission, Town of Woodbury, and such letter was marked as an exhibit in that matter by the hearing officer, without objection by counsel for the respondents.
19.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., when they denied the complainant a copy of the November 9 letter.
20.  With regard to the June 14 memorandum, described in paragraph 2(b), above, after careful review, it is found that such memorandum is a written legal opinion that was solicited by Ms. 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. 
21.  It is found that the June 14 memorandum is a communication related to legal advice sought by an employee of a 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.
22.  Thus, it is found that the June 14 memorandum, described in paragraph 2(b), above, is exempt from mandatory disclosure, pursuant to the provisions of §1-210(b)(10), G.S.
23.  Accordingly, it is concluded that the respondents did not violate the FOI Act by withholding the June 14 memorandum, from the complainant.   
 
24.  With respect to the request described in paragraph 2(c), above, it is found that the respondents provided to the complainant all responsive records they maintain.
25.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in the complaint, with regard to the records described in paragraphs 2(c), above.
26.  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.  Henceforth, the respondents shall strictly comply with §§1-210(a) and 1-212(a), G.S.
 2.  Forthwith, the respondents shall provide the complainant with a copy of the November 9 letter, free of charge.
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:
Thomas Arras
P.O. Box 857
Woodbury, CT  06798
Martin Overton, Chairman, Zoning
Commission, Town of Woodbury;
Catherine Adsitt, Town Planner, 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/2011-425/FD/cac/4/25/2012