Final Decision FIC2013-339
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In the Matter of a Complaint by |
FINAL DECISION | |
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Geoffrey Woods,
Complainant |
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against
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Docket #FIC 2013-339 | |
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Commissioner, State of Connecticut,
Department of Administrative Services, Construction Services; and State of Connecticut, Department of Administrative Services, Construction Services, Respondents |
February 26, 2014 |
The above-captioned matter was heard as a contested case on October 16, 2013, 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 respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that by e-mail dated March 26, 2013 and again on April 25, 2013, the complainant requested that the respondents provided him with five specified categories of records.
3. By letter dated June 4, 2013, and received on June 6, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with all records responsive to his request.
4. 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.
5. 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.
6. 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. The type of copy provided shall be within the discretion of the public agency, except (1) the agency shall provide a certified copy whenever requested, and (2) if the applicant does not have access to a computer or facsimile machine, the public agency shall not send the applicant an electronic or facsimile copy.”
7. 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.
8. It is found that on or about May 6, 2013 the respondents provided the complainant with 966 responsive records, of which the complainant only retained 42 and sent the rest back to the respondents.
9. It is found that while there was some disagreement about whether one category of records was provided on May 6, 2013, at the time of the hearing on this matter, the complainant was able to confirm that he had been provided with the records that fell within the scope of that portion of his request.
10. It is found, however, that the respondents withheld some of the responsive records from disclosure claiming they were exempt pursuant to §1-210(b)(1), G.S., as preliminary drafts or notes, and/or §1-210(b)(10), G.S., as attorney-client privileged communications.
11. At the hearing on this matter, the respondents submitted an unredacted copy of the records described in paragraph 10, above, to the Commission for an in camera inspection (hereinafter the “in camera records”). Such in camera records shall be identified as follows:
IC-2013-339-A
IC-2013-339-B-1
IC-2013-339-B-2
IC-2013-339-B-3
IC-2013-339-C-1
IC-2013-339-C-2
IC-2013-339-C-3
IC-2013-339-D-1
IC-2013-339-D-2
IC-2013-339-D-3
IC-2013-339-E-1
IC-2013-339-E-2
IC-2013-339-F-1
IC-2013-339-F-2
IC-2013-339-F-3
IC-2013-339-F-4
12. With respect to the respondents’ claim that some of the records are exempt from disclosure pursuant to §1-210(b)(1), G.S., that statute provides in relevant part that nothing in the FOI Act shall require the disclosure of:
Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure; ....
13. Section 1-210(e), G.S., provides that:
Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of: (1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency....
14. The respondents specifically claim that the following are exempt from disclosure pursuant to §1-210(b)(1), G.S.:
IC-2013-339-A in its entirety;
IC-2013-339-B2 in its entirety;
IC-2013-339-B3 in its entirety;
IC-2013-339-C2 page 1 lines 1-30;
IC-2013-339-D1 pages 1 - 2;
IC-2013-339-D2 pages 1 and 2 line 37;
IC-2013-339-D3 pages 1-2;
IC-2013-339-E1 page 1;
IC-2013-339-E2 page 1 lines 1-29;
IC-2013-339-F2 page 1 and 2 line 4; and
IC-2013-339-F3 in its entirety.
IC-2013-339-B2 in its entirety;
IC-2013-339-B3 in its entirety;
IC-2013-339-C2 page 1 lines 1-30;
IC-2013-339-D1 pages 1 - 2;
IC-2013-339-D2 pages 1 and 2 line 37;
IC-2013-339-D3 pages 1-2;
IC-2013-339-E1 page 1;
IC-2013-339-E2 page 1 lines 1-29;
IC-2013-339-F2 page 1 and 2 line 4; and
IC-2013-339-F3 in its entirety.
15. Upon careful examination of the records described in paragraph 14, above, it is found that those records are preliminary drafts prepared by staff subject to revision prior to submission to or discussion among officials of the respondent Department of Administrative Services, Construction Services with decision-making authority, within the meaning of §§1-210(b)(1) and §§1-210-(e)(1), G.S.
16. It is found that the respondents determined that the public interest in withholding the records described in paragraph 14, above, clearly outweighed the public interest in disclosure.
17. Accordingly, it is found that the records described in paragraph 14, above, are exempt from mandatory disclosure.
18. With respect to the respondents claim that some of the records are exempt from disclosure pursuant to §1-210(b)(10), G.S., that statute provides in relevant part that nothing in the FOI Act shall require the disclosure of:
Records, tax returns, reports and statements exempted by federal law or the general statutes or communications privileged by the attorney-client relationship, marital relationship, clergy-penitent relationship, doctor-patient relationship, therapist-patient relationship or any other privilege established by the common law or the general statutes, including any such records, tax returns, reports or communications that were created or made prior to the establishment of the applicable privilege under the common law or the general statutes....
19. 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. at 149. 32.
20. 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....
21. 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.
22. The respondents specifically claim that the following are exempt from disclosure pursuant to §1-210(b)(10), G.S.:
IC-2013-339-B-1;
IC-2013-339-C1 page 1 lines 1-21;
IC-2013-339-C3;
IC-2013-339-F1; and
IC-2013-339-F4.
IC-2013-339-C1 page 1 lines 1-21;
IC-2013-339-C3;
IC-2013-339-F1; and
IC-2013-339-F4.
23. It is found that the requested records relate to the respondents seeking and receiving legal advice.
24. It is also found that the communications between the respondents and their attorney were transmitted in confidence and relate to legal advice sought by the respondents, acting in the performance of their duties, from their attorney.
25. Upon careful examination of the records identified in paragraph 22, above, it is found that they are either communications transmitted in confidence between attorneys for the respondents and employees and officials of the respondent DAS relating to legal advice sought by DAS employees and officials, or are records prepared by DAS attorneys in furtherance of the rendition of such legal advice, within the meaning of §52-146r(2), G.S.
26. Consequently, it is found that the in camera records identified in paragraph 22, above, are permissibly exempt from disclosure under the FOI Act.
27. Based on the findings in paragraphs 17 and 26, it is concluded that the respondents did not violate the FOI Act by withholding the in camera records.
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 February 26, 2014.
__________________________
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.
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:
Geoffrey Woods
172 North Cedar Road
Fairfield, CT 06824
172 North Cedar Road
Fairfield, CT 06824
Commissioner, State of Connecticut, Department of Administrative Services,
Construction Services; and State of Connecticut, Department of
Administrative Services, Construction Services
c/o Kevin Kopetz, Esq.
State of Connecticut,
Department of Administrative Services
165 Capitol Avenue
Room 445
Hartford, CT 06106
Construction Services; and State of Connecticut, Department of
Administrative Services, Construction Services
c/o Kevin Kopetz, Esq.
State of Connecticut,
Department of Administrative Services
165 Capitol Avenue
Room 445
Hartford, CT 06106
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2013-339/FD/cac/2/26/2014