foi says no

7/27/2019 FOI SAYS NO

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FnsnnoM OFII{FORMATIONConnecricut Freedom of Inlormation Commission 18-20 Trinitv Street, Suite 100 Hartford, CT 06106Toll lrec (CT oniy): {.866)374-3617 'lel i86tt)566-5682 Fax {860)566-6'174 'nrwv.state.ct-us/Ioil ' email: [email protected]

Notice of MeetingDocket #FlC 2013-050

August 14,2013

Eugene Driscoll and theValley lndependent Sentinel,Complainant(s)againstBoard of Alderman, Town of Derby; and Townof Derby, ResPondent(s)

Transmittal of Proposed Final Decisionln accordance with Section 4-179 of the Connecticut General Statutes, the Freedom oflnformation Commission hereby transmits to you the proposed finding and decision prepared by

the hearing officer in the above-captioned matter.fnis witt notify you that the Commission will consider this matter for disposition at its meetingwhich will be held inihe Freedom of lnformation Commission Hearing Room, 18-20 Trinity Street,lst floor, Hartford, Connecticut, at2 p.m. on Wednesday, September 11, 2013. At that time andplace you will be allowed to offer oral argument concerning this proposed finding and order' Oralargument shall be limited to ten (10) minutes. For good cause shown, however, the Commissionmiy increase the period of time for argument. A request for additional time must be made inwr1ing and should.be filed with the Commission ON OR BEFORE August 34 2013- Suchrequelt MUST BE (1) copied to all parties, or if the parties are represented, to suchrepresentatives, and (2) include a notation indicating such notice to all parties or theirrepresentatives.Although a brief or memorandum of law is not required, if you decide to_submit such adocument, an oriqinal and fourteen (141 copies must be filed ON OR BEFORE August 30,ZOIJ. PLEASE NOTE: Any correspondence, brief or memorandum directed to theGommissioners by any party or representative of any party MUST BE (1) copied to allparties, or if the parties are represented, to such representatives, (2) include a notationindicating such notice to all parties or their representatives and (3) be limited to argument.NO NEW EVIDENGE MAY BE SUBMITTED.lf you have already filed a brief or memorandum with the hearing officer and wish to havethat doiument distributed to each member of the Commission, it is requested that fourteen ({4)copies be filed OA/ OR BEFORE August 30, 2013, and that notice be given to all parties or ifinEp-arties are represented, to their representatives, that such previously filed document isbeing submitted to the Commissioners for review.

W. ParadisActing Clerk of the CommissionNotice to: Eugene DriscollJoseph J. CoPPola, Esq.81 1 41 131Frcfr 201 3-050ff rans/wrbpA/RPiffCB

An Affirmative Action/Equal Opportunity Employer


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FREEDOM OF INFORMATION COMMISSIONOF TFIE STATE OF CONNECTICUT

In the Maffer of a Complaint byEugene Driscoll and theValley Independent Sentinel,

Complainantsagainst

Board of Aldermen,Town of Derblq andTown of Derby,Respondents

Report Of Hearing Officer

Docket #FIC 2013-050

July 8,2013

The above-captioned matter was heard as a contested case on July 1,2013, atwhich time the complainants and the respondents appeared, stipulated to certain facts andpresented testimony, exhibits and argument on the complaint. The respondents submittedthe record at issue in this case for an in camera inspection.After consideration of the entire record, the following facts are found andconclusions 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 theCommission, alleging that the respondents violated the Freedom of Information ("FOI")Act by denyrng their request for a certain report prepared by the Derby CorporationCounsel.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 meetingof the Derby Board of Aldermen."4. It is found that the respondents, through counsel, denied the request by letterdated February 2,2413, claiming that the requested report was exempt from disclosurepursuant to $i-210(bx1), G.S., as a communication privileged by the affomey-clientrelationship.


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Docket #FIC2013-050 Page2

,**:l'":?i,"'-?T"J;ffi ffi #lffin1ii,tn,n*prepared, owned, used, received or retained by a publicagency, or to which a public agency is entitled to receive acopy by law or contract under section I-218, whether suchdata or information be handwritten, typed, tape-recorded,printed, photostated, photographed or recorded by aoyother method.

6. Section 1-210(a), G.S., provides in relevant part:Except as otherwise provided by any federal law or statestatute, all records maintained or kept on file by any publicagency, whether or not such records are required by anylaw or by any rule or regulation, shall be public records andevery person shall have the right to (1) inspect such recordspromptly during regular office or business hows, (2) copysuch records in accordance with subsection (g) of section 1-2I2, or (3) receive a copy ofsuch records in accordancewith sectionl-2I2.

7 - Section l-2l2(a) provides in relevant part that "[a]ny person applying inwriting shall receive, promptly upon request, a plain, facsimile, electronic or certifiedcopy 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 byCorporation Counsel, of the mishandling of cash, deletion of data regarding cashpayments, and suspension of tax billing statements in the Tax Collector's office by unemployee who was ultimately separated from her employment.10. It is found that the requested report relates to legal advice by the CorporationCounsel to the respondents as to how to resolve issues surrounding the mishandling of

cash in the Tax Collector's office, including *{rether to file a complaint with the policedepartment, and how resolve issues srirrounding the empioyment rights of the employeeaccused of misconduct. It is further found that the respondents found just cause toterminate 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 disclosureunder $i-2i0(bX10), G.S., as "communications privileged by the attorney-clientrelationship."


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Docket #FIC2013-050 Page 3

12. The applicability of the exemption contained in $1-210(bX10), G.S., isgoverned by established Connecticut law defining the privilege. Maxwell v. FOICommission,260 Cowr.l43 (2002). In Maxwell, the Supreme Court stated that $52-146r, G.S., which established a statutory privilege for communications between publicagencies and their attorneys, merely codifies "the common-law attorney-client privilegeas this court previously had defined it." Id. at149.

13. Section 52-146r(2), G.S., defines "confidential communications" as:all oral and written communications transmitted inconfidence between apublic official or employee of apublic agency acting in the performance of his or her dutiesor within the scope of his or her employment and agovemment attorney relating to legal advice sought by thepublic agency or a public ofFrcial or employee of suchpublic agency from that attorney, and all records preparedby the government attorney in furtherance of the renditionofsuch legal advice. . . .

14. The Supreme Court has also stated that "both the common-law and statutoryprivileges protect those communications between a public ofFrcial or employee and anattomey that are confidential, made in the course of the professional relationship thatexists between the attorney and his or her public agency client, and relate to legal advicesought by the agency from the attorney." Maxwell, supra at 149.

15. It is found that the requested report relates to legal advice sought by therespondents concerning the terminated employee, and that it was transmitted inconhdence between public ofFrcials or employees of a public agency and corporationcounsel.

16. The complainant contends that the privilege was waived, based upon anewspaper report of a statement made by an administrator in the Derby Mayor's officethat disclosure of the report "would have given people a blueprint of how to go aboutmanipulating data."

17. It is found, however, that the single statement by the administrator in theMayor's office is not enough evidence from which to draw an inference that theadministrator had personal knowledge of thereport, or that if the report was in factdisclosed to her as an administrator in the Mayor's office, that the privilege between therespondents and their Corporation Counsel was breached and thereby waived.

18. While the report concerns principally factual matters investigated byCorporation Counsel, and is not purely a legal opinion, it nonetheless relates to legaladvice concerning the disposition of the issues raised by the employee misconduct, and issquarely within the scope of the privilege as defined in Shew v. Freedom of InformationCommission,245 Corlrt. 149 (1995) (records created by attorney as part of an


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-Docket #FIC2013-050 Page 4

investigation that resulted in the termination of town employee are privileged whereinformation communicated to the attorney by other town employees was needed tosupply a basis for legal advice concerning compiiance with legalities involved in thepossible termination of the town employee).

19. It is therefore concluded that the withheld report is exempt from mandatorydisciosure by virtue of $1-21O(bxi0), G.S., and that the respondents did not violate theFOI Act as alleged.

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

1. The complaint is dismissed.

HOR /FIC20 1 3 -050/VRP/070 120 1 3

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