The above-captioned matter was heard as a contested case on August 30, 2012, at which time the complainant and the respondents appeared 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 letter dated March 2, 2012, the complainant made a request to the respondents for all records related to a “letter dated September 14, 2010 from Attorney Michel Bayonne to Attorney Thomas Bucci” (the “September 14 letter”).

     3.  It is found that, by letter dated March 6, 2012, the respondents informed the complainant that his request had been received and was being reviewed, and that they would contact him once the records had been compiled.

     4.  By email dated and filed March 16, 2012, 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. 

     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 2, above, are public records, within the meaning of §§1-200(5) and 1-210(a), G.S.

     9.  It is found that the complainant, who was employed as the legislative services director for the City of Bridgeport, received the September 14, 2010 letter, informing him that the City Council intended to terminate his employment for cause, but offered to permit him to resign. 

     10.  It is found that the respondents hired the law firm of Durant, Nichols, Houston, Hodgson & Cortese-Costa (“Durant Nichols”), to provide them with legal advice in connection with the intended dismissal of the complainant.  It is found that Attorney Michel Bayonne of Durant Nichols, prepared a written legal opinion addressed to Mark Anastasi, City Attorney, dated May 5, 2010 (the “opinion”); and a Report of Investigation Prepared for the City of Bridgeport, City Council Leadership, dated May 26, 2010 (the “report”).

     11.  The respondents claim that both the opinion and the report, described in paragraph 10, above, are exempt from disclosure, pursuant to §1-210(b)(10), G.S., which permits an agency to withhold from disclosure records of “communications privileged by the attorney-client relationship.”

     12.  At the conclusion of the hearing, the respondents submitted the opinion and the report to the Commission for in camera inspection.  The in camera records consist of a four-page legal opinion, plus a fax cover sheet, and a four-page report, plus a cover page and table of contents page, for a total of 11 pages.

     13.  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.

     14.  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. . . .

     15.  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.  See also Shew v. Freedom of Information Commission, 245 Conn. 149 (1998).

     16.  In addition, in Shew, the sole issue on appeal was whether certain documents created by an attorney who had been retained by the town of Rocky Hill to conduct an investigation of the town’s police chief were subject to disclosure under the FOI act.  See id. at 151.  The Court held that the report at issue was exempt from mandatory public disclosure based upon the portion of §1-210(b)(10), G.S., which recites the attorney-client privilege.  Id. at 160. 

     17.  After careful inspection of the opinion, it is found that:  (a) Attorney Bayonne was acting in a professional capacity for the respondents; (b) the communications were made by Attorney Bayonne to the city attorney in his capacity as such; (c) the communications relate to the legal advice sought by the respondents from Attorney Bayonne; and (d) the communications were made in confidence.

     18.  Accordingly, it is concluded that the opinion is an attorney-client privileged communication within the meaning of §1-210(b)(10), G.S.

     19.  After careful inspection of the report, it is found that, such report was created by Attorney Bayonne in furtherance of the legal advice the respondents requested from him.  Specifically, as in Shew, it is found that:  (a) Attorney Bayonne was acting in his capacity as an attorney for the respondents; (b) that the communications contained in the report were made by Attorney Bayonne to the city council members; (c) the communications in the report relate to the legal advice sought by the respondents from Attorney Bayonne; and (d) the communications were made in confidence.

     20.  Accordingly, it is concluded that the report is an attorney-client privileged communication within the meaning of §1-210(b)(10), G.S.

     21.  Based upon the foregoing, it is concluded that the in camera records, described in paragraphs 10 and 12, above, are exempt from disclosure. 

     22.  It is found that the respondents provided the complainant with copies of several emails between and among the complainant, and various members of the city council and the city’s personnel director, all of which are dated December 2009 and January 2010.  In addition, it is found that the respondents provided the complainant with a copy of a memorandum, dated January 19, 2010, to the acting personnel director, which purports to be from city council leadership.

     23.  At the hearing in this matter, the complainant stated that the records described in paragraph 22, above, are not responsive to his request, described in paragraph 2, above.  Although the complainant acknowledged that the respondents never conducted any reviews of his performance during his employment with the city, and that thus there are no records regarding the same, he insisted that additional responsive records exist that have not been provided to him.

     24.  Although counsel for the respondents represented at the hearing that a search for responsive records had been conducted, and that all responsive records have been provided to the complainant, no witness appeared at the hearing to testify as to the nature and scope of any such search.  Further, respondents’ exhibit 4 recites the following exchange between respondents’ counsel and the city council president: “Tom, do you recall or have possession of the emails that Tom White is referencing?...Greg, I have no memory of sending an email to the personnel director at all.  That was a long time ago.”  Based upon the foregoing, the Commission is unconvinced that the city council president, nor any other person, conducted any search for responsive emails.

    25.  It is concluded that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., when they failed to conduct a thorough search for responsive records. 

     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  The respondents shall conduct a thorough search for all records responsive to the request, described in paragraph 2, above.  Three weeks from the date of issuance of this final decision, the respondents shall provide an affidavit from each member of the city council, the personnel director, and the city attorney, stating the nature and scope of the search, which shall include a search for deleted emails, to the complainant, along with any located responsive records. 

     2.  Henceforth, the respondents shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 27, 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 White
446 Savoy Street
Bridgeport, CT  06606

City Attorney, Office of City
Attorney, City of Bridgeport; and
Office of the City Attorney,
City of Bridgeport
c/o Gregory M. Conte, Esq.
Associate City Attorney
Office of the City Attorney
999 Broad Street
Bridgeport, CT  06604-4328

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-157/FD/cac/9/27/2012