FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

18-20 Trinity Street Hartford, CT 06106
Telephone: (860) 566-5682
Toll-free (CT only): (866)374-3617
Fax: (860)566-6474

Kevin Brookman,
Complainant(s) Notice of Meeting
against
Docket #FIC 2009-551
John Rose, Corporation Counsel,
Office of the Corporation Counsel,
City of Hartford; and City of Hartford,
Respondents) February 23,2010

Transmittal of Proposed Final Decision

In accordance with Section 4-179 of the Connecticut General Statutes, the Freedom of
Information Commission hereby transmits to you the proposed finding and decision prepared by
the hearing officer in the above-captioned matter.
This will notify you that the Commission will consider this matter for disposition at its
meeting which will be held in the Freedom of Information Commission Hearing Room, 18-20
Trinity Street, 1st floor, Hartford, Connecticut, at 2 p.m. on Wednesday, April 14, 2010. At
that time and place you will be allowed to offer oral argument concerning this proposed finding
and order. Oral argument shall be limited to ten (10) minutes. For good cause shown, however,
the Commission may increase the period of time for argument. A request for additional time
must be made in writing and should be filed with the Commission ON OR BEFORE APRIL 2,
2010. Such request MUST BE (1) copied to all parties, or if the parties are represented, to
such representatives, and (2) include a notation indicating such notice to all parties or their
representatives.
Although a brief or memorandum of law is not required, if you decide to submit such a
document, the Commission requests that an original and twelve (12) copies be filed ON OR
BEFORE APRIL 2, 2010. PLEASE NOTE: Any correspondence, brief or memorandum
directed to the Commissioners by any party or representative of any party MUST BE (1)
copied to all parties, or if the parties are represented, to such representatives, (2) include a
notation indicating such notice to all parties or their representatives and (3) be limited to
argument. NO NEW EVIDENCE MAY BE SUBMITTED.
If you have already filed a briefer memorandum with the hearing officer and wish to
have that document distributed to each member of the Commission, it is requested that twelve
(12) copies be filed ON OR BEFORE APRIL 2, 2010, and that notice be given to all parties or
if the parties are represented, to their representatives, that such previously filed document
is being submitted to the Commissioners for review.

By Order of the Freedom of Information Commission

W. Paradis, Acting Clerk of the Commission

Notice to: Kevin Brookman

John Rose, Jr., Esq.
 FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Report of Hearing Officer

Kevin Brookman,

Complainant

against Docket #FIC 2009-551

John Rose, Corporation Counsel,

Office of the Corporation Counsel,
City of Hartford; and
City of Hartford,

Respondents February 11, 2010

The above-captioned matter was heard as a contested case on December 17,2009,

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 email dated September 1,2009, the complainant requested

to review the following:

"Any and all documentation regarding the termination of

Hartford Police Officer Matthew Secore. Including, but not
limited to any and all internal investigations,
correspondence, e-mails, correspondence regarding Labor
Board hearings and rulings, appeals of any Labor
Board/mediation rulings as well as any and all records of
any funds spent or billed to the City for the use of outside
counsel in this matter."

3. It is found that, by email dated September 2, 2009, respondent Rose replied:

".. .this is to acknowledge your email dated 9/1/09 re FOI-

able documents related to the Secore case. The matter is
still in litigation and I will review and comply with your
request in that context. For the record, there is no outside
counsel concerned with the Secore matter. I will review
 Docket # FIG 2009-551 Page 2

the law and the documents and to the extent there are
disclosable materials I will gather them and advise you that
they are available for inspection. I am sending your request
to such other City offices, agencies or departments as may
be in possession of documents relevant to your request.
When I notify you that such disclosable documents are
available, you may call.. .to schedule a time to review
same. Any copies you request will be billed at the statutory
per page rate."

4. It is found that, by email dated September 17, 2009, the complainant asked
respondent Rose for an "update on where this request stands," as the complainant had
not, as of that date, received any of the requested records from the respondents.

5. It is found that, by email dated September 17, 2009, respondent Rose replied:

"It is my opinion that since the Secore case is a matter

pending and actively being litigated and, given the fact that
the file contains materials covered by the attorney client
privilege, the records pertaining to that matter are protected
from disclosure by the provisions of the General Statutes,
Sec. 1-210."

6. By letter of complaint, sent via email on September 19,2009, and received on

on September 21, 2009, 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. In his complaint, the
complainant requested that "the maximum civil penalties be assessed against Mr. Rose
and any others involved in this matter."

7. 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.

8. Section l-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
 Docket # FIC 2009-551 Page 3

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.

9. Section l-212(a), G.S., provides hi relevant part that "[a]ny person applying in
writing shall receive, promptly upon request, a plain or certified copy of any public
record."

10. It is found that the records described in paragraph 2, above, are public records
and must be disclosed in accordance with §§1-200(5), l-210(a) and l-212(a), G.S., unless
they are exempt from disclosure.

11. It is found that, after an incident involving Officer Secore, the respondent
City of Hartford terminated Officer Secore's employment with the Hartford Police
Department, and thereafter, Officer Secore filed a grievance with the State Board of
Mediation and Arbitration ("Board"), claiming the city did not have just cause to fire
him. It is found that, after a hearing, the Board issued its decision reversing the
termination, and issuing a suspension instead. It is further found that the respondent City
of Hartford appealed the Board's decision to the superior court, where such case was
pending at the time of the hearing in this matter.

12. At the hearing ha this matter, the complainant testified that, although he had
not received any of the requested records from the respondents, he obtained, through
other sources, the following records he believed are maintained by the respondents:

• a Hartford Police Department Internal Affairs

Report, dated July 6, 2007, concerning Officer
Secore;

• a letter from the City of Hartford to Officer Secore,

dated January 31, 2008, with an interdepartmental
memorandum, dated January 25, 2008, attached;

• a legal brief filed with the Board, on behalf of the

Hartford Police Union, dated September 25, 2008;

• a legal brief filed with the Board, on behalf of the

City of Hartford, dated September 26, 2008;

• the Arbitration Award, issued by the Board, dated

January 16, 2009 ("Arbitration Award").
 Docket # FIG 2009-5 51 Page 4

13. It is found that the respondents maintain the records described in paragraph
12, above, and that such records are responsive to the request described in paragraph 2,
above.

14. At the hearing hi this matter, the respondent Rose stated that his office
maintains two large "redwell" files full of records responsive to the request, described hi
paragraph 2, above.1

15. After the hearing in this matter, the hearing officer issued an order, dated
December 18, 2009, requiring the respondents to submit to the Commission for in camera
review, the records being claimed exempt from disclosure, along with an index listing
each record and the specific exemption being claimed for each such record, on or before
January 13, 2010. At the respondents' request, an extension of tune was granted to file
such submission, and the in camera records were filed with the Commission on January
15, 2010. It is found that the in camera records consist of 13 documents, totaling 90
pages: two (2) emails, four (4) letters, two (2) portions of a transcript or transcripts
containing handwritten notes, three (3) memoranda containing handwritten notes, a list of
direct examination questions, and an incomplete copy of the Arbitration Award,
containing handwritten notes, all concerning the Secore matter. Such in camera records
shall be designated herein as 1C 2009-551-001 through 1C 2009-551-013.

16. It is found that the records described in paragraph 12, above, were not
included with the in camera submission and are not claimed exempt from disclosure on
the in camera index filed with the Commission on January 15, 2009.

17. The respondents contend that the in camera records are exempt from
disclosure pursuant to §§l-210(b)(10), and l-210(b)(4), G.S.

18. Section l-210(b)(10), G.S., permits an agency to withhold from disclosure

records of "communications privileged by the attorney-client relationship."

19. The applicability of the exemption contained in §l-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.

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

1
Corporation Counsel John Rose, a named respondent, appeared at the hearing in this matter, but declined
to give sworn testimony, and refused to allow the complainant to ask him questions. Attorney Rose also
filed an appearance in this matter on behalf of "all respondents." No witnesses appeared to testify on
behalf of the respondents.
 Docket # FIC 2009-551 Page 5

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 claim, on the index to the in camera records, that 1C 2009-
551-001, and 1C 2009-551-10, are exempt from disclosure pursuant to §l-210(b)(10),
G.S.

23. After careful review of 1C 2009-551-001, which is an email, dated May 23,
2008, it is found that the respondent Rose was acting in a professional capacity for the
agency; and further, that the communication was made between the respondent Rose and
a current member of the public agency. However, it is also found that it cannot be
determined by inspection of the document alone, that the communication relates to legal
advice sought by the agency from the respondent Rose; or that the communication was
made in confidence. Further, it is found that the respondents offered no evidence at the
hearing in this matter regarding the foregoing. It is therefore found that the respondents
failed to prove that 1C 2009-551-001 is exempt from disclosure pursuant to §1-
210(b)(10), G.S.

24. After careful review of 1C 2009-551-010, which is a memorandum, dated

May 20,2008, it is found that the respondent Rose was acting in a professional capacity
for the agency; that the communication was made between the respondent Rose and a
member of the public agency; and that the communication relates to legal advice sought
by the agency from the respondent Rose. However, it is also found that it cannot be
determined by inspection of the document alone, that the communication was made hi
confidence. It is further found that the respondents offered no evidence at the hearing in
this matter regarding the foregoing. It is therefore found that the respondents failed to
prove that 1C 2009-551-010 is exempt from disclosure pursuant to §l-210(b)(10), G.S.

25. With regard to the §l-210(b)(4), G.S. claim of exemption, such provision
permits an agency to withhold "records pertaining to strategy and negotiations with
respect to pending claims or pending litigation to which the public agency is a party until
such litigation or claim has been finally adjudicated or otherwise settled."

26. "Pending litigation" is defined hi § 1-200(9), G.S., as "(A) a written notice to

an agency which sets forth a demand for legal relief or which asserts a legal right stating
the intention to institute an action before a court if such reliefer right is not granted by
 Docket # FIG 2009-551 Page 6

the agency; (B) the service of a complaint against an agency returnable to a court which
seeks to enforce or implement legal reliefer a legal right; or (C) the agency's
consideration of action to enforce or implement legal reliefer a legal right."

27. It is found that the respondent City of Hartford's pending appeal of the
Board's decision in the superior court at the time of the hearing in this matter constitutes
"pending litigation" within the meaning of §1-200(9), G.S.

28. Our Supreme Court has determined, relying on Webster's Third New
International Dictionary, that "strategy" is defined as "the art of devising or employing
plans or strategems." City of Stamford v. Freedom of Information Commission, 241
Conn. 310, 318 (1997). Further, the Court stated that "negotiation is defined as the action
or process of negotiating," and "negotiate is variously defined as: to communicate or
confer with another so as to arrive at the settlement of some matter: meet with another so
as to arrive through discussion at some kind of agreement or compromise about
something; to arrange for or bring about through conference and discussion: work out or
arrive at or settle upon by meetings or agreements or compromises; and to influence
successfully in a desired way by discussion and agreements or compromises." (Internal
quotations omitted).

29. The respondents claim that 1C 2009-551-002 through 1C 2009-551-004 and

1C 2009-551-006, which are letters and an email between counsel involved in the Secore
matter, are exempt from disclosure pursuant to §l-210(b)(4), G.S.

30. After careful review of the hi camera records described in paragraph 29,
above, it is found that such records do not pertain to any strategy or negotiation with
respect to the pending litigation described in paragraph 27, above. Rather, it is found that
such records pertain to administrative matters. It is therefore found that such records are
not exempt from disclosure pursuant to §l-210(b)(4), G.S.

31. Next, the respondents claim that 1C 2009-551-005, which is a letter dated
September 8, 2009, is exempt from disclosure pursuant to §l-210(b)(4), G.S.

32. After careful review of the in camera record described hi paragraph 31,
above, it is found that only the second and third paragraphs of such letter pertain to
strategy and negotiation with respect to the pending litigation described in paragraph 27,
above. It is therefore found that only the second and third paragraphs of such letter are
exempt from disclosure pursuant to §l-210(b)(4), G.S.

33. Next, the respondents claim that 1C 2009-551-007 and 1C 2009-551-008, are
exempt from disclosure pursuant to § 1 -210(b)(4), G.S. It is found that such records
consist of excerpts of a transcript, or transcripts, of a proceeding, involving Officer
Secore, which proceeding is not identified anywhere on, or in, such transcript(s). It is
further found that portions of 1C 2009-551-007 and IC-551-008 are highlighted and
contain handwritten notes of the respondent Rose.
 Docket # FIC 2009-551 Page 8

43. It is found that the respondents do not maintain any records responsive to the
request for "records of any funds spent or billed to the City for the use of outside counsel
in this matter." It is therefore concluded that the respondents did not violate the FOI Act
with respect to such request.

44. It is found that, in addition to the records described in paragraph 12, above,
and the records provided to the Commission for in camera review, described in paragraph
15, above, the respondents maintain many records responsive to the request described in
paragraph 2, above, copies of which were neither provided to the complainant, nor
provided to the Commission for in camera inspection, as ordered. It is found that such
records are, at least in part, those described hi paragraph 14, above.

45. It is found that, at the hearing in this matter, the respondent Rose stated: "I
would not turn over to a judge on a subpoena any documents in our file, let alone provide
them in a Freedom of Information situation."

46. hi their post-hearing brief, the respondents claimed an "attorney work

product" exception and argued that the requested documents are "not recoverable" from
"the private file of Corporation Counsel." In addition, hi their brief, the respondents refer
to the complainant as "an officious intermeddlerr [sic] who seeks, by utilizing the FOI
Act, to invade Attorney Rose's file in a way that not even opposing counsel might do...."
According the respondents, the burden is on the complainant to "show[ ] why the
documents he seeks must come from Attorney Rose's file." Also, in their brief, the
respondents add that "[i]n fact, [the complainant] has produced in this proceeding several
very substantial documents subsumed by his FOI request which he obtained God-knows-
where—but certainly not from Attorney Rose's file. Clearly the documents are available
without the need for him to invade the privacy—violate the sanctity of Attorney Rose's
file."

47. The respondents point to no specific provision of the FOI Act which sets
forth an "attorney work product" exemption, and the Commission is aware of no such
provision. The federal case law cited in the respondents' brief does not support their
position.

48. Moreover, even if an "attorney work product" exemption existed, the

respondents' broad assertion of such an exemption is contrary to established case law.

49. It is a cornerstone of FOI Act case law that an agency must make a
particularized showing that an exemption applies, and the propriety of an exemption
depends on the information contained hi the particular record requested. New Haven v.
FOIC, 205 Conn. 767 (1988); Perkins v. FOIC, 228 Conn. 158 (1993); Dir., Dep't of Info
Tech v. FOIC, 274 Conn. 179,193 (2005). Moreover, our Supreme Court has held that
where "... the applicability of an exemption is in dispute it is not only within the
commission's power to examine the documents themselves, it is contemplated by the act
that the commission do so." Wilson v. FOIC, 181 Conn. 324, 339-40 (1980). The Court
cited §l-205(d) [formerly §l-21j (d)], G.S., which provides in relevant part that:
 Docket#FIC 2009-551 Page?

34. After careful review of the in camera records described in paragraph 33,
above, it is found that such records, as highlighted, along with the handwritten notes,
pertain to strategy and negotiation with respect to the pending litigation described hi
paragraph 27, above. It is further found that such records could not be redacted in such a
way as to prevent disclosure of the respondents' strategy. It is therefore found that 1C
2009-551-007 and 1C 2009-551-008, are exempt from disclosure in their entirety
pursuant to §l-210(b)(4), G.S.

35. Next, the respondents claim that 1C 2009-551-009 is exempt from disclosure
pursuant to §l-210(b)(4), G.S. It is found that such record consists of a memorandum,
dated September 2, 2008.

36. After careful review of the in camera record described in paragraph 35,
above, it is found that such record pertains to strategy and negotiation with respect to the
pending litigation described in paragraph 27, above. It is therefore found that 1C 2009-
551-009, is exempt from disclosure pursuant to §l-210(b)(4), G.S.

37. Next, the respondents claim that 1C 2009-551-010 and 1C 2009-551-011 are
exempt from disclosure pursuant to §l-210(b)(4), G.S.

38. After careful review of the in camera records described in paragraph 37,
above, it is found that such records pertain to strategy and negotiation with respect to the
pending litigation described in paragraph 27, above. It is therefore found that 1C 2009-
551-010 and 1C 2009-551-011, are exempt from disclosure by virtue of §l-210(b)(4),
G.S.

39. Next, the respondents claim that 1C 2009-551-012 is exempt from disclosure
pursuant to § l-210(b)(4), G.S. It is found that such record contains handwritten notes,
some of which are not readable due to copying error.

40. After careful review of the in camera record described in paragraph 39,
above, it is found that only the handwritten notes contained in such record pertain to
strategy and negotiation with respect to the pending litigation described in paragraph 27,
above. It is therefore found that only the handwritten notes contained in 1C 2009-551-
012, are exempt from disclosure by virtue of §l-210(b)(4), G.S.

41. Next, the respondents claim that 1C 2009-551-013 is exempt from disclosure
pursuant to §l-210(b)(4), G.S. It is found that such record contains handwritten notes.

42. After careful review of the in camera record described in paragraph 41,
above, it is found that only the handwritten notes contained in such record pertain to
strategy and negotiation with respect to the pending litigation described in paragraph 27,
above. It is therefore found that only the handwritten notes contained in 1C 2009-551-
013, are exempt from disclosure by virtue of §l-210(b)(4), G.S.
 Docket # FIG 2009-551 Page 9

"Said commission shall have the power to investigate all

alleged violations of [the act] and may for the purpose of
investigating any violation hold a hearing, administer oaths,
examine witnesses, receive oral and documentary evidence,
have the power to subpoena witnesses under procedural
rules adopted by the commission to compel attendance and
to require the production for examination of any books and
papers -which the commission deems relevant in any matter
under investigation or in question." (Emphasis added.)

Id. at 340. The Supreme Court also held that §l-205(d), G.S., "anticipates that the
Commission will play a central role hi resolving disputes administratively under the act.
To fulfill this role effectively, the Commission's determinations must be informed. It
should not accept an agency's generalized and unsupported allegations relating to
documents claimed to be exempt from disclosure." Id., citing Church of Scientology of
California v. United States Department of the Army. 611 F.2d 738, 742 (9th Cur. 1979).

50. However, hi this case, with respect to the majority of the records the
respondents admittedly maintain, the respondent Rose has refused to comply with the
Commission's order to submit such records for an hi camera inspection, and has refused
to allow the Commission to examine the information contained hi the particular records
requested. Rather, the respondent Rose, without claiming a specific statutory exemption
to disclosure, has made only categorical, general assertions that the records the
respondents maintain are not disclosable because they are "private." The respondents
have thus obstructed the Commission's process.

51. To the extent that the respondent Rose relies on Lash, First Selectman of the
Town of Greenwich v. Freedom of Information Commission, 116 Conn. App. 171
(2009), appeal pending, Supreme Court Docket No. SC 18461, for the proposition that he
is relieved from his responsibilities under the FOI Act because the complainant should
have requested the records from the Police Department, rather than from Corporation
Counsel's office, such reliance, too, is misplaced, given the fact that hi his September 2,
2009 reply to the complainant, the respondent Rose offered to send his request to other
city departments that might be hi possession of records responsive to such request.

52. Based upon the foregoing, it is concluded that the respondents violated: (1)
§§l-210(a) and l-212(a), G.S., by failing to disclose the records, or portions thereof,
described hi paragraphs 12, 23, 30, 32, 40 and 42, above, and (2) the Commission's order
for in camera inspection of the records being claimed exempt.

53. With regard to the complainant's request for civil penalties, §l-206(b)(2),
G.S., provides hi relevant part:

2
See paragraph 3, above.
Docket # FIC 2009-551 Page 10

... upon the finding that a denial of any right created by the
Freedom of Information Act was without reasonable
grounds and after the custodian or other official directly
responsible for the denial has been given an opportunity to
be heard at a hearing conducted in accordance with sections
4-176e to 4-184, inclusive, the commission may, in its
discretion, impose against the custodian or other official a
civil penalty of not less than twenty dollars nor more than
one thousand dollars.

54. It is found that the respondent Rose is the individual who made the decision
to withhold the records, or portions thereof, described in paragraphs 12, 23, 30, 32, 40
and 42, above, from the complainant, and that therefore, the respondent Rose is the
official directly responsible for the denial of the right to inspect the records, or portions
thereof, described in paragraphs 12, 23, 30, 32, 40, and 42, above, as created by §§1-
210(a) and l-212(a), G.S. It is further found that such denial was without reasonable
grounds.

55. It is also found that the FOI Act, and the regulations promulgated thereunder,
create a right to a fair hearing for any person who has been denied the right to inspect or
copy records, or denied access to the meetings of public agencies. See §§l-206(a), G.S.
l-225(a) and §l-21j-35(a) of the Regulations of State Agencies.3 It is found that the
respondent Rose's refusal to allow the Commission to conduct an in camera inspection of
the records it maintains that are responsive to the request described in paragraph 2, above,
violated the complainant's right to a fair hearing under the FOI Act and the regulations.
It is found that the respondent Rose is the individual who made the decision not comply
with the Commission's order to submit the records being claimed exempt for in camera
inspection, and that therefore, the respondent Rose is the individual who is the official
who is directly responsible for the denial of the complainant's right to a fair hearing in
this matter. It is further found that the denial of such right was without reasonable
grounds.

The following order by the Commission is hereby recommended on the basis of

the record concerning the above-captioned complaint:

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

1. The respondents shall forthwith provide the complainant with copies of the
records described in paragraphs 12, 23, 30, 32,40, and 42, above, as well as a copy of
every record in all files maintained by the respondents responsive to the request described
in paragraph 2, above, free of charge.
3
Sec. 1-21j-3 5 of the Regulations provides, in relevant part: (a) Purpose of hearing. The purpose of any
hearing the commission conducts under chapter 54 of the general statutes shall be to provide to all parties
an opportunity to present evidence and argument on all issues to be considered by the commission.
Docket # FIC 2009-551 Page 11

2. In complying with paragraph 1, above, of the order, the respondents may

redact only those portions of the records described in paragraphs 32, 40 and 42, above,
found to be exempt from disclosure by this Commission.

3. The respondent Rose shall forthwith remit a civil penalty in the amount of
$1000.00 (one thousand dollars ) to the Commission.

Kathleen K. Ross
as Hearing Officer
FIC 2009-551/hor/kkr/02112010