Final Decision FIC2012-302
In the Matter of a Complaint by
||Docket #FIC 2012-302|
State of Connecticut, Office of the
February 21, 2013
The above-captioned matter was heard as a contested case on December 6, 2012 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 Commission takes administrative notice of the record and decisions in contested cases docket #FIC 92-71, Robert Fromer v. New London Director of Law, aff'd, Londregan v. FOIC, No. CV930526105 S, Memo. of Dec. July 13, 1994, Teller, J., and #FIC 93-55, Robert Fromer v. New London Director of Law, aff'd in part, Londregan v. FOIC, No. CV940529345 S, Memo. of Dec. July 13, 1994, Teller, J.
2. The respondents are public agencies within the meaning of §1-200(1), G.S.
3. By letter dated June 1, 2012, the complainant made a request to the respondent to inspect the following:
“Item #1: Any documents receive to, sent from, produced from, and any other documents in respect to any aspect of the following FIC cases, from the time period of 1 Jan 12 until the date of a final decision regarding the cases at the FIC: FIC case #2011-595; FIC Case #2012-130, and FIC case #2012-131.”[sic]
“Item #2: Cost of copy documents including any documents that would support the claim for the costs of documents ($/pg).”
The complainant also provided instructions to the respondent for records that it may
claim are exempt from disclosure stating that “the respondent shall:
1) Note the statutory exemption;
2) State the subject matter of the document; and
3) State the following:
a. who produced the document;
b. who received the document (if multiple people received it then include a list of each and every person who received it);
c. when the document was produced; and
d. when the document was received by each person of (b).”
4. By letter dated June 1, 2012, the respondent replied to the complainant’s request by providing two responsive documents and by denying his request for the litigation files of Assistant Attorney General Stephen Sarnoski claiming that the files are exempt from disclosure pursuant to the attorney-client privilege and as attorney work product.
5. By letter dated June 2, 2012 and filed on June 5, 2012, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act and the “United States 1st and 14th amendments” by failing to comply with his request as described in paragraph 3, above. The complainant also alleged that the respondent:
a. violated Rule 4.4 of the Attorney Ethics Code;
b. failed to provide a privilege log;
c. maintains a policy that all documents handled by subordinates of the Attorney General are privileged which is not supported by law; and
d. tampered and conspired to tamper with evidence by withholding evidence of pending FIC cases.
6. With respect to the complainant’s allegations that the respondent violated the 1st and 14th amendments of the United States Constitution, and Rule 4.4 of the Attorney Ethics Code, the FOI Commission is entirely a creature of statute. “It operates within the confines of the Freedom of Information Act (act); General Statutes §1-200 et seq.; and the complementary rules of the Uniform Administrative Procedure Act, General Statutes §4-166 et seq. As a creature of statute, the jurisdiction of the Commission necessarily is restricted by the legislation from which it originates. ‘Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.’ Castro v.Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); see also State v.State Employees' Review Board, 231 Conn. 391, 406, 650 A.2d 158 (1994) (administrative agency possesses no inherent power; its authority 'is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function’).” Dep’t of Pub. Safety v. Freedom of Info. Comm’n, 103 Conn. App. 571, 584 (2007).
7. Consequently, the Commission does not have jurisdiction to enforce the 1st and 14th Amendments of the United States Constitution, and Rule 4.4 of the Attorney Ethics Code and those allegations will not be addressed any further herein.
8. With respect to the complainant’s allegation that the respondent failed to comply with his records request in violation of the FOI Act, §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.
9. 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.
10. 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.”
11. It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
12. It is found that all records responsive to the complainant’s request are maintained in the litigation files of the Assistant Attorney General assigned to litigate the three matters described in paragraph 3, item #1, above.
13. At the hearing on this matter, the respondent, through counsel, represented, and it is found, that a review of the files was conducted for any non-exempt records within those files and that two documents were found that were subsequently provided to the complainant.
14. The respondent also argued at the hearing that the remaining records in the file were attorney-client privileged records or were attorney work product and are exempt from disclosure pursuant to §1-210(b)(10), G.S.
15. Section 1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act shall require disclosure of:
...communications privileged by the attorney-client relationship….
16. Section 52-146(r), 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. Section 52-146r, G.S., prohibits disclosure of confidential communications between a government attorney and a public official or employee of a public agency and provides, in relevant part, that:
[i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.
18. Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S. Such 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.
19. The Supreme Court has also stated that "both the common-law and statutory privilege 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 his public agency client, and relate to the legal advice sought by the agency from the attorney." Maxwell, 260 Conn. At 149.
20. It is concluded, therefore, that those portions of the records contained in the litigation files which constitute communications privileged by the attorney-client relationship are exempt from disclosure pursuant to §1-210(b)(10), G.S.
21. Also, §1-210(b)(4), G.S., provides, in relevant part, that nothing in the FOI Act shall require disclosure of:
Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled….
22. Section 1-200(8), G.S., provides that:
“Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
23. It is found that all of the contested FOI cases requested in paragraph 3, Item #1, above, were still pending at the time of the complainant’s request.
24. It is concluded that the records contained in the litigation files which pertain to strategy or negotiations with respect to pending claims are exempt from disclosure pursuant to §1-210(b)(4), G.S.
25. It is found that the respondent has already provided the complainant with a copy of all non-exempt records responsive to his request, and therefore, it is concluded that the respondent did not violate the disclosure provisions of §1-210(a), G.S.
26. With respect to the complainant’s allegation described in paragraph 5b, above, it is concluded that there is nothing in the FOI Act that requires the respondent to create a privilege log after denying a records request.
27. With respect to the complainant’s allegation described in paragraph 5c, above, it is found that the Office of the Attorney General does not maintain such a policy.
28. Finally, there is no evidence in the record to support the complainant’s allegation that the respondent tampered or conspired to tamper with evidence.
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 special meeting of February 21, 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:
15 Cardinal Road
East Lyme, CT 06333
State of Connecticut,
Office of the Attorney General
c/o Terrence M. O’Neill, 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