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Final Decision FIC2012-161
In the Matter of a Complaint by
FINAL DECISION
David Godbout,
     Complainant
     against
Docket #FIC 2012-161
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection; and State of Connecticut,
Department of Emergency Services and
Public Protection,
     Respondents
January 9, 2013

     The above-captioned matter was heard as a contested case on September 4, 2012 at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.
     This matter was consolidated for hearing with Docket #FIC 2012-130, David Godbout v. City of Norwich et al., and Docket #FIC 2012-131, David Godbout v. City of Hartford et al.

     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 March 26, 2012, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for public records.
     3.  It is found that the complainant made a request on dated March 13, 2012 to the respondents to review and inspect “any documents related to any letters or directives issued by Commissioner Bradford as described by CGS 1-210(b)(19) and/or CGS 1-210(d) from the dates of 1 JAN 12 through 13 MAR 12, including such directives themselves.”
     4.  It is found that the only documents withheld from the complainant are six pages, submitted to the Commission for an in camera inspection, that the respondents claim are either privileged by the attorney-client relationship, pertain to strategy and negotiation with respect to pending claims and litigation, or are preliminary drafts or notes.
     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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:
          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.   
          ...
          Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.
     7.  It is concluded that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     8.  Section 1-210(b)(10), G.S., provides that disclosure is not required of “communications privileged by the attorney-client relationship.”
     9.  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.
     10. 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. . . .
     11. 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.
     12. After a careful review of the in camera records, it is found that pages 1 through 4 are written communications transmitted in confidence between the respondents’ employees acting in the performance of their duties and within the scope of their employment and their attorneys relating to legal advice sought by those employees from those attorneys.

     13. It is therefore concluded that the records described in paragraph 12, above, are exempt from disclosure pursuant to §1-210(b)(10), G.S.
     14. After a careful review of the in camera records, it is also found that pages 5 and 6 are handwritten notes of oral communications between the respondents’ employees acting in the performance of their duties and within the scope of their employment, and their attorneys, relating to legal advice sought by those employees from those attorneys.
     15. It is therefore concluded that the records described in paragraph 14, above, are exempt from disclosure pursuant to §1-210(b)(10), G.S.
     16. Based upon the conclusions in paragraphs 13 and 15, above, it is unnecessary to consider the respondents’ additional claims of exemption under §§1-210(b)(1) and (4), G.S.
     17. It is therefore concluded that the respondents did not violate the FOI Act as alleged.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1. The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 9, 2013.
__________________________
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:
David Godbout
15 Cardinal Road
East Lyme, CT  06333
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection; and State of Connecticut,
Department of Emergency Services and
Public Protection
c/o Stephen R. Sarnoski, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105
___________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2012-161/FD/cac/1/9/2013