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Final Decision FIC2013-050
In the Matter of a Complaint by
Eugene Driscoll and the
Valley Independent Sentinel,
Docket #FIC 2013-050
Board of Aldermen,
Town of Derby; and
Town of Derby,
September 11, 2013

     The above-captioned matter was heard as a contested case on July 1, 2013, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The respondents submitted the record at issue in this case for an in camera inspection.
     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 February 4, 2013, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for a certain report prepared by the Derby Corporation Counsel.
     3.  It is found that the complainant made a January 30, 2013 request for “[t]he ‘report regarding tax office matter,’ as listed on the agenda of the Jan. 24, 2013 meeting of the Derby Board of Aldermen.”
     4.  It is found that the respondents, through counsel, denied the request by letter dated February 2, 2013, claiming that the requested report was exempt from disclosure pursuant to §1-210(b)(1), G.S., as a communication privileged by the attorney-client relationship.
     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:
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.    
     7.   Section 1-212(a) 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 concluded that the requested report is a public record within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

     9.  It is found that the requested report concerns an investigation, conducted by Corporation Counsel, of the mishandling of cash, deletion of data regarding cash payments, and suspension of tax billing statements in the Tax Collector’s office by an employee who was ultimately separated from her employment.
     10. It is found that the requested report relates to legal advice by the Corporation Counsel to the respondents as to how to resolve issues surrounding the mishandling of cash in the Tax Collector’s office, including whether to file a complaint with the police department, and how resolve issues surrounding the employment rights of the employee accused of misconduct. It is further found that the respondents found just cause to terminate the employee, and that the employee ultimately agreed to voluntarily resign, reimburse the town $9,000, and waive any claims against the town.
     11. The respondents contend that the requested report is exempt from disclosure under §1-210(b)(10), G.S., as “communications privileged by the attorney-client relationship.”
     12. 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.

     13. 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. . . .
     14. 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.
     15. It is found that the requested report relates to legal advice sought by the respondents concerning the terminated employee, and that it was transmitted in confidence between public officials or employees of a public agency and corporation counsel.
     16. The complainant contends that the privilege was waived, based upon a newspaper report of a statement made by an administrator in the Derby Mayor’s office that disclosure of the report “would have given people a blueprint of how to go about manipulating data.”
     17. It is found, however, that the single statement by the administrator in the Mayor’s office is not enough evidence from which to draw an inference that the administrator had personal knowledge of the report, or that if the report was in fact disclosed to her as an administrator in the Mayor’s office, that the privilege between the respondents and their Corporation Counsel was breached and thereby waived.

     18. While the report concerns principally factual matters investigated by Corporation Counsel, and is not purely a legal opinion, it nonetheless relates to legal advice concerning the disposition of the issues raised by the employee misconduct, and is squarely within the scope of the privilege as defined in Shew v. Freedom of Information Commission, 245 Conn. 149 (1998) (records created by attorney as part of an investigation that resulted in the termination of town employee are privileged where information communicated to the attorney by other town employees was needed to supply a basis for legal advice concerning compliance with legalities involved in the possible termination of the town employee).
     19. It is therefore concluded that the withheld report is exempt from mandatory disclosure by virtue of §1-210(b)(10), G.S., and 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 September 11, 2013.
Cynthia A. Cannata
Acting Clerk of the Commission
Eugene Driscoll and the Valley Independent Sentinel
158 Main Street, Suite 305
Ansonia, CT  06401
Board of Aldermen, Town of Derby; and
Town of Derby
c/o Joseph J. Coppola, Esq.
115 Technology Drive
Trumbull, CT  06611

Cynthia A. Cannata
Acting Clerk of the Commission