Opinion
No. CV 02 0518367S
June 4, 2003
MEMORANDUM
This is an administrative appeal from a decision of the Freedom of Information Commission (FOIC) brought pursuant to Connecticut General Statutes §§ 1-206 (d) and 4-183. The plaintiff, Joseph McLaughlin (McLaughlin), challenges the correctness of the FOIC's decision in the contested case docket FIC#2002-057, Joseph McLaughlin v. First Selectman, Town of Greenwich.
On January 14 and February 5, 2002, McLaughlin requested records of legal advice given to both the First Selectman and the Beach Task Force of the Town of Greenwich. McLaughlin's requests were related to the decision of the Connecticut Supreme Court in Leydon v. Town of Greenwich, 257 Conn. 318, 777 A.2d 552 (2001). In Leydon, our Supreme Court held that a Greenwich town ordinance was unenforceable because it limited access to a town park with beachfront to only town residents and their guests. Shortly after the Leydon decision was issued, McLaughlin urged in a letter to the town that it amend its ordinance to permit nonresidents to access town parks for the purpose of engaging in expressive behavior. The Board of Selectmen of Greenwich appointed a Beach Task Force to recommend a plan of balancing the interests of town residents and nonresidents. The Beach Task Force issued its final report rejecting McLaughlin's proposal for amending the town's ordinance based upon legal advice that it had received.
The Greenwich First Selectman rejected the Beach Task Force recommendations and McLaughlin's proposal as being inconsistent with the Supreme Court's decision in the Leydon case based upon legal advice he had received.
In a letter dated January 14, 2002, McLaughlin requested that the First Selectman provide him with "all written legal advice, or summaries of oral legal advice rendered to the First Selectman's Beach Task Force" related to the Leydon issue. In a letter dated January 24, 2002, the First Selectman denied McLaughlin's request on the ground that legal CT Page 8176-ar advice to the Beach Task Force was protected from disclosure by the attorney-client privilege.
On February 5, 2002, the First Selectman published an article in the local newspaper in which he quoted from a January 31, 2002 letter to him from attorney Ralph Elliot, the town's outside counsel. McLaughlin subsequently expanded his request to the First Selectman to include all legal advice received by the Board of Selectmen regarding the town's response to the Leydon case. Thereafter, the First Selectman provided McLaughlin with a copy of the January 31, 2002 letter from attorney Elliot. The First Selectman posted his article to the local newspaper and the contents of the January 31, 2002 letter from attorney Elliot on the town's website.
McLaughlin appealed the town's refusal to provide him with the legal advice given to the First Selectman and the Beach Task Force, on the Leydon issue, to the Freedom of Information Commission claiming that the legal advice rendered by the town's attorneys to the Board of Selectman and the Beach Task Force were not protected by the attorney-client privilege. McLaughlin argues that the attorney-client privilege was waived by the First Selectman publishing an article in the Greenwich Times containing excerpts from Attorney Elliot's letter. Following a hearing on McLaughlin's appeal to the FOIC, the hearing officer recommended that the Commission dismiss McLaughlin's appeal. The Commission adopted the hearing officer's recommendation and dismissed McLaughlin's appeal as a final decision.
The Commission found that the First Selectman had not waived the attorney-client privilege with respect to the information sought by McLaughlin and that the information was exempt from disclosure pursuant to General Statutes § 1-210 (b) (10).
Section 1-210 (Formerly § 1-19). Access to public records. Exempt records. (b) (10) Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.
McLaughlin now appeals the decision of the FOIC claiming that the town waived the attorney-client privilege by the First Selectman publishing the newspaper article which contained references to attorney Elliot's letter to the First Selectman. McLaughlin acknowledges in his Reply Brief of May 15, 2003 that the town had turned over to him two versions of attorney Elliot's letter. McLaughlin now claims that the town refused to turn over to him "records of legal advice previously received by the First Selectman and the `beach task force' regarding the Town's response to the Supreme Court's decision in Leydon v. Greenwich . . ." (Plaintiff's Reply Brief p. 2.)
The issue in this case, as recognized by both parties, is whether the First Selectman's publication of portions of attorney Elliot's letter CT Page 8176-as explaining the Leydon decision was a waiver of the attorney-client privilege so that all legal advice given to the First Selectman and the Beach Task Force should be turned over to McLaughlin.
Waiver is a factual issue to be determined by the trier of the fact. Cowles v. Cowles, 71 Conn. App. 24, 26, 799 A.2d 1119 (2002). The trier of the facts in this case is the FOIC as a state agency. As an appellate court we do not make findings of fact. Rather, our function is to determine whether substantial evidence exists to support the FOIC's factual finding of waiver and whether the conclusions drawn from those facts are reasonable. See Dolginer v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996).
Appeals from an administrative agency, such as the FOIC, under the Uniform Administrative Procedure Act (UAPA) pursuant to General Statutes § 4-183 (j) are limited. Burinskas v. Department of Social Services, 240 Conn. 141, 146-47 (2003). Our "ultimate duty is only to decide whether, in light of the evidence, the [agencyl has acted unreasonably, arbitrarily, illegally, or in abuse of discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Id., p. 147.
As we have previously noted, the First Selectman has turned over to the plaintiff the letters from Attorney Elliott to the First Selectman. The plaintiff now wants the First Selectman to disclose to him all legal advice from other attorneys representing the town dealing with the Leydon decision because of his perceived waiver of the attorney-client privilege by the release of the letter from Attorney Elliott and the information contained therein.
Although the plaintiff does not recognize it, Attorney Elliot's letter to the First Selectman was intended to be released to the public. As the FOIC notes and relies on for its decision to uphold the town's attorney-client privilege, Attorney Elliot's letter was not intended to be a confidential communication that would invoke the privilege. Attorney Elliot's letter to the First Selectman was prefaced by the following language:
You have asked if I could write you a brief letter to help you answer continuing questions from townspeople about the meaning and scope of the Connecticut Supreme Court's opinion in the Beach Case. I will try to do so in this letter, while at the same time avoiding the CT Page 8176-at sort of advice-giving that would transform this letter into a confidential communication protected by the lawyer-client privilege. I hope it helps you to explain the Leydon decision to your fellow citizens.
The record adequately supports the factual underpinnings of the decision of the FOIC to dismiss the plaintiff's appeal. We also find that the Commission's decision was based upon a correct application of the law to the facts found.
"Connecticut has a long-standing, strong public policy of protecting attorney-client communications . . . It is important not to weaken the privilege with various exceptions . . ." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999).
General Statutes § 1-210 (b) (10) of the Freedom of Information Act exempts from disclosure "Records, tax returns, reports and statements exempt by federal or state statutes or communications privileged by the attorney-client relationship. (Emphasis added.)
As the FOIC points out, "(t)he facts in the case at bar fully satisfy both the common law and statutory criteria for exemption from disclosure. The First Selectman is the chief executive officer of the Town and heads the Board of Selectmen which is a public agency . . . At its public meeting on October 18, 2001, the Board of Selectman appointed the Selectmen's Beach Task Force which is also a public agency of the Town . . . It was chaired by Selectman Peter Crumbine and was charged with recommending a plan to include a fee structure and other policies that would balance the interests of the citizens of the Town while abiding by the Supreme Court's decision . . . During the course of their meetings, the Selectmen's Beach Task Force and the Board of Selectmen, including the First Selectman, sought and received legal advice from the Town's attorneys with regard to the legalities of the Supreme Court's decision . . ." (Defendant's brief dated April 29, 2003, pp. 6-7.) Legal advice given by the town attorneys to the Selectmen and the Beach Task Force is a protective communication and not subject to public disclosure. Shew v. Freedom of Information Commission, 245 Conn. 149, 157, 714 A.2d 664 (1998).
The publication of Attorney Elliot's letter was not a waiver of the privilege of non-disclosure because the FOIC found, and the facts support this finding, that the letter was not intended to be a confidential communication which would invoke the attorney-client privilege. We conclude that the FOIC made a correct application of the law to the facts in this case. CT Page 8176-au
We find that the Commission's decision dismissing the plaintiff's appeal was not unreasonable, arbitrary, illegal, or in abuse of its discretion. Accordingly, judgment may enter in favor of the defendant FOIC dismissing this appeal without costs to either party.
ARONSON, J.T.R.