STATE OF CONNECTICUT FREEDOM OF INFORMATION COMMISSION KEVIN BROOKMAN, ) Complainant ) FIC 2009-551 Against ) JOHN ROSE, JR., CORPORATION ) COUNSEL, OFFICE OF THE CORPORATION, } April 5, 2010 COUNSEL,CITY OF HARTFORD AND CITY OF HARTFORD RESPONDENT’S MEMORANDUM OF LAW 1. THE PARTIES John Rose, Jr. for himself as Corporation Counsel for the City of Hartford, submits this Memorandum of Law in support of said Respondent's positions and claims of law in opposition to the Heating Officer's Proposed Final Decision, dated February 23, 2010. Respondent Rose submits that nothing in the Proposed Final Decision in any way implicates or seeks to penalize the Office of the Corporation Counsel (an agency, office or department of the City. See Hartford City Charter, Chap. VII Sec, 3) or theCity of Hartford, cach of whom are designated Respondents in this matter. Therefore, this case must be dismissed as to the Office of the Corporation Counsel and the City of Hartford. Itis to be noted that the Complainant’s original FOL request was addressed to Attomey Rose, not to the Office of Corporation Counsel or to the City of Hartford. His complaint to the Commission, dated September 19, 2009 was only as ageinst “Mr. John Rose, Corporation Counsel for the City of Hartford”; and not as against the Office of Corporation Counsel or the City of Hartford. Neither of those entities was named by the Complainant and they were only joined as Respondents by the Commission. Then NOTHING in the evidence or in the Proposed Final Decision anywhere references failures or wrongdoing or actions by the Office of Corporation Counsel or by the City such as to justify either their being named parties Respondent or being held to answer for any of the complaints or findings in this case. Tl. THE PROPOSED FINAL DECISION‘The Hearing Officer determined (see paragraph 1 of the Proposed Final Decision) that Attomey Rose is a “public agency.” ‘Then she goes on (see paragraph 54 of the Proposed Final Decision) to find that _.. respondent Rose is the individual who made the decision to withhold the records, or portions thereof... and that _. respondent Rose is the official direcily responsible for the denial of the right to inspect the records, or portions thereof... However, the Heating Officer also finds (at paragraphs 23, and 24 of the Proposed Final Decision) that _. the respondent Rose was acting in a professional capacity for the agency [with “agency” being presumptively the City of Hartford, which entity ought not even be a Respondent in this case, given the complaint, the original FOI request and the findings herein). In other words; the Proposed Final Decision makes clear thet Attorney Rose was, throughout, acting as lawyer representing a client, in his official capacity. ‘Then, the Hearing Officer goes on to find that:b) d the case about which Complainant sought documents from the lawyer representing the City was — and is ~ pending litigation; and that Attomey Rose, acting in his professional capacity, was justified in ‘withholding items or documents which Complainant sought by his FOL request, because those items were wholly exempt fiom disclosure. See ‘paragraphs 34, 36, 38 and 42 of the Proposed Final Decision; and that Attorney Rose, acting in his professional capacity, was justified in ‘withholding items or portions of items or documents which Complainant sought by his FOI request because those items were in part exempt (see ‘paragraphs 32, 40 and 42 of the Proposed Final Decision); and ‘that Complainant, as of the hearing before the Hearing Officer had obtained through other sources substantial documentation which be continued to seek to obtain from Attorney Rose’s files. See paragraph 12 of the Proposed Final Decision.‘There is no question but that Complainant never sought documents from the Office of Corporation Counsel; he never sought documents from the City of Hartford. He only sought documents from the files of the Attorney for the City. ‘The Hearing Officer claimed that Rose “refused to comply with the Commission's order to submit... records for an in camera inspection.” Included in the records not submitted were all those which Complainant already had, amounting to hundreds of pages. See paragraph 12 of the Proposed Final Decision. In addition, at the only hearing ever had in this matter, the Complainant testified that in addition to the materials or documents he obtained “through other sources” he had additional materials that were in his files. The Heating Officer ordered Attorney Rose to submit records for im camera inspection, which was done. Rather than ackdress an apparent claim of failure to include adequate records for such inspection, she claims that “respondent Rose ...fefased to allow the Commission to examine the information contained in the particular records requested.” Nothing could be further from the truth, At the conclusion of the only hearing had in this case, the Hearing Officer requested thatAttorney Rose submit documents for an in camera review. None of the documents Complainant already had (see Finding No. 12, supra) were disclosed for that in camera review. What would have been the point of that? Attorney Rose admits that he said, conceming his files maintained by him as attomey for the City in the pending Secore litigation, that “...I would not turn over to a judge on a subpoena any documents in our [my] file, let alone provide them in = Freedom of Information situation.” In order for the Hearing Officer’s conclusion to pass muster, the Commission has to believe that the lawyer for an agency must also be the “public agency” constrained by the FOI Act; literally the official charged with the statutory duty. Prior to the rendition of the Proposed Final Decision, Attomey Rose submitted to the Hearing Officer the attached Memorandum of Law. All of the cases cited and the claims made in that Memorandum, dated January 14, 2010, are reiterated here and relied upon, Following is the law supplementing that set forth in the January 14, 2010 ‘Memorandum, justifying the determination to refuse to allow Complainant to violate the file of the attorney for the City in the still pending Secore case.I. SUPPLEMENTING THE LAW Again, Respondent relies on the Attomey Client Privilege and the Work Product Doctrine to secure to him and to his files protection fom Complainant's and the Commission's invasion of that space. The Commission is also constrained by the law. ‘The Hearing Officer never even mentions the doctrine enunciated by the U.S. Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). _.. the general policy against invading the privacy of an attomney’s course of preparation is so well recognized and so essential fo an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify produotion through a subpoena or court order... In this case No Burden was put on the Complainant by the Commission to cause him to justify his determination to seek documents affecting an ongoing legal proceeding by an assault on the City’s lawyers file. Ifthe City had engaged outside counsel in this case, there would be no issue of the propriety of such an assault.Connecticut has a long-standing, strong policy of protecting attomey-client communications. See Gould, Larsen, Bennett, Well & McDonnell, P.C. v. Panico, 273, 321 (2005); Doyle v. Reeves, 112 Conn. 521 (1931). ‘And communications between town employees to counsel are covered by the attorney-client privilege. New Haven v, FOIC, 4 Conn App 216, 220 (1985). “While the Hearing Officer purports to use the Maxwell v, FOIC case against Respondent, it is worthy of note that that case stands for the proposition “... that the language of Sec. 52-146r demonstrates that the essential elements of the common law and statutory privilege are identical... Sec. 52-146r merely codified the common Jaw attorney client privilege as this court previously had defined it.” Maxwell, supra at 149, But the attomey-client and work product concepts extend beyond statutes and case law to secure the privacy of the lawyer's file and his/her obligations to a client. ‘The Rules of Professional Conduct, the very code of lawyers, dictates that “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent...” RULES OF PROF'L CONDUCT, Rule 1.6(A) (2009).‘The Comments to Rule 1.6 provide “The principle of client-lawyer confidentiality is given effect by related bodies of law, the attorney-client privilege, the work product doctrine and the Rule of confidentiality established in professional ethics”, Rule 1.6 Commentary. ‘The commentary specifies that the” attorney-client privilege and the work product doctrine apply in judicial aud other proceedings where the attomey may be“... required fo produce evidence”, whereas the Rule of confidentiality “applies in situations other than those where evidence is sought from the lawyer through compulsion of law”. Rule 1.6, Commentary. “The standard used in protecting such information is that of “reasonableness”. The commentary specifies that the attomey should not reveal any information which “could reasonably lead to the discovery of such information by a third party”. Rule 1.6 Commentary. “Again, concerning the Maxwell case, the Superior Coutt ruling in that matter relying on Rule 1.6 held that “communications to an attorney for a public agency are protected from disclosure by privilege if the following conditions are met. (J) the attorsey mnst be acting in a professional capacity; (2) the communications must be made to the attorney by current employees or officials of the agency; (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence; Maxwell y. FOIC, 2001 WL 219874 (Conn, Super); citing Shew v. FOIC, 245 Conn, 149,158 (1998). In Maxwell, the documents sought were “all legal bills, receipts, itemized statements and similar instruments since 1994”. Here, the request goes to the very heart of the City attorney's file “.. any and all documents” relating to a pending case.Further concerning the sanctity of the City attorney's owa files, and beyond Hickman y. Taylor, supra, the United States v. Nobles case, 422 U.S. 225,238n, citing to Hickman, prescribes that the work product doctrine has been described as a ‘means to protect “the mental processes of the attorney” which include “Iegal theories, planning, litigation strategies and trial tactics, and sifting through information”. See Salomon Bros. Treasury Litigation v. Steinhardt Partners, L.P., 9 F.3d 230 (2d Civ. 1993), “According to the Federal Rules of Civil Proceduse, the party in Complainant’s shoes must show “substantial need! and the inability to obtain the substantial equivalent without undue hardship". Fed R.Civ. P. 26 (b) (3). Here, Complainant made no such showing. In fact, he produced several to many of the documents from other sources, clearly evidencing that they need not to have come from an invasion of Respondent attorney’s files. ‘The applicability of the work produet doctrine {o this case is best exemplified by NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). In that case, the U.S Supreme Court, while explaining the intent of the federat FOT Act, agreed with the notion that “Exemption 5 withholds from a member of the publi¢ documents which a private party could not discover in litigation with the agency”. ‘The Supreme Court further explained that “It is equally clear that Congress had ihe attomey’s work product privilege specifically in mind when it adopted Exemption 5 and that such a privilege has been recognized in the civil discovery context by the prior case law. ‘The Senate Report states that Exemption 5 would include the working papers of the agenoy attorney and documents which would come within the attomey client privilege if applied to private parties. ..” NLRB v. Sears, Roebuck & Co., 421 US 132, 154 (1975) (citing S. Rep. No. 813. p.2). 10IV. THE PROPRIETY OF IMPOSING A PENALTY ‘The Hearing Officer, having concluded that Respondent Attorney Rose, though acting in his professional capacity, as the lawyer for the City, did “obstruct the Commission's process”, proposes to fine Respondent counsel personally $1000. The case Jaw herein provided argues must urgently against any such fine being imposed. ‘That case law clearly explains that an attorney, acting in good faith, could seek to protect the sanctity of his/his client’s files against not only another party to litigation, but also as against a member of the public, seeking documents pursuant to the FOI Act. See NLRB v. Sears, Roebuck &Co., supra. Respondent, in its earlier memorandum cited to the Lash v. FOIC, 156 Conn. ‘App. 171 (2009) case, where the Court specifically addvessed the civil penalty issue. ‘The Lash court said that no civil penalty will lic for a good faith conclusion by Respondent that documents sought were protected against disclosure. Lash at 182- 183. Imposing not just a civil penalty, but the maximum civil penalty allowed by law, against an attomey acting within the Rules of Professional Responsibility, within the law as prescribed by attorney-client privilege and by the work product doctrine— all tong accepted rules prescribing and protecting counsel—is inappropriate. A civil penalty may only be imposed if the records were withheld “without reasonable grounds”. To do otherwise would be an abuse of the Commission’s discretion. See C.G'S. Sec. 1-206 (b) (2). ‘A court assessing the propriety of civil penalties will look to the issue of whether the administrative agency abused its discretion. Pet v. Department of Public Health, 228 Conn. 651 (1994), Citing Gibson y. Connecticut Medical Examining Board, 141 Conn, 218, 230 (1954). uRespondent Rose’s actions, all as evidenced by his memorandum dated January 14, 2010 citing the Lash case and the case law exempting a lawyer's file from iavasion by outside parties, and bolstered by the case law and the Rules of Professional Conduct, cited herein, were reasonable and justified. ‘They were, in fact, a result of bis professional responsibility to not disclose documents or information from his files in @ pending case. They were reasonable and, as a result, those actions ought not be punished. CITY OF HARTFORD 550 Main Street Hartford, CT. 06105 Tel: (860) 757-9700 CERTIFICATION ‘This is to certify that a copy of the foregoing was mailed, postage prepaid, on April 5 to Kevin R. Brookman, 120 Sigourney Street, Hartford, CT, 06105