Freedom Of Information Law

Report from attorney's investigator can be withheld in employee discipline case

One of the most important exceptions to Freedom of Information Act’s is a provision that allows public agencies to deny FOI requests for documents that are “communications privileged by the attorney-client relationship.” See Conn. Gen. Stat. §1-210(b)(10). This issue comes up frequently when employees act improperly and a public agency is confronted with how to investigate and discipline employees. If the discipline is significant, a freedom of information request is often the first sign that an employee intends to put up a fight.

When an attorney is retained to provide legal advice regarding the discipline, documents that are produced by the attorney for the purpose of providing legal advice are privileged and, as such, can be withheld even if an employee files a freedom of information request asking for every document under the sun.

But what if the attorney hires an investigator to look into employee misconduct? Is that investigator’s report, which may not have been produced by an attorney, privileged and protected from disclosure under the FOIA?

According to a recent Freedom of Information Commission, the answer is yes. If an attorney hires an investigator to assist that attorney in providing legal advice regarding employee discipline, that investigator’s report is privileged and an agency or town is not required to produce that report in response to a FOI request. See Anderson v. Superintendent of Schools, Derby Public Schools, FOIC Docket No. FIC 2009-166 (Mar. 10, 2010).

But what if an agency conducts its own investigation before retaining counsel? In most instances, any reports produced during that investigation would be subject to a FOI request even though an identical report produced by an investigator working for an attorney could be withheld. As is often the case, the lesson to be learned from Anderson is that public agencies are often better off if they involve counsel in employee discipline matters at the earliest stages.

Freedom of Information Law — No Comments
20
Mar 10

FOI bill pits clerks vs. cops

There is a nice article by Jacqueline Rabe over at the CT Mirror on the controversy surrounding a bill that would codify a recent court decision holding the addresses of public safety workers can still be found through local land records even though there is an exemption in the law for disclosing the addresses. Here’s the lead:

Correction Officer Kevin Brace doesn’t know why a convicted arsonist at the prison where he works was able to get his personal information through a Freedom of Information request that can reveal his home address, but he can’t imagine it’s a good thing.

“It’s paper terrorism,” said Brace. “They can get my personal information and there is nothing I can do about it.”

Brace and other government employees in a dozen categories had thought their home addresses were protected by a law limiting access to that information under the FOI law. But a Superior Court judge ruled last year that municipal data such as land and voting records can’t be kept secret.

Now a legislative committee is considering a bill to conform the FOI law to that ruling, an action that has town clerks and the Connecticut Freedom of Information Commission on one side and the protected employees on the other.

The rest of the article talks about both sides reasoning for supporting or opposing the bill. The town clerks argue that keeping the addresses confidential would be burdensome. Public safety officials, on the other hand, worry about more than just their own safety. Apparently some inmates are filing spurious liens to make it harder for public safety officials to sell their homes.

Seems like this issue will keep coming up until the legislature makes a decision one way or the other. Last March I wrote on the Connecticut Police Chiefs Association police efforts to close this privacy loophole. I’m penciling in another post for March 2011.

Freedom of Information Law — No Comments
17
Sep 09

Agency must produce database results

Generally speaking, a public entity is not required to create a public record when it does not already exist just because someone asks for a particular record pursuant to the Connecticut Freedom of Information Act. This is a good policy. Responding to FOI requests can be a lot of work for cities and agencies. Creating entirely new records would be even more work.

But what about print-outs from computer databases? All the “information” contained in the databases exists and is generally subject to a FOI request, but people usually don’t use — or ask for — an entire database. They ask for a list of X, Y, and Z that may not already exist, but is contained within a database that can be readily searched for X, Y, and Z.

So is a public agency required to search a database in response to a FOI request? The Connecticut Freedom of Information Commission says it does.

The Commission recently dealt with this issue when Department of Revenue Services declined to provide any records in response to a request for a copy of a seniority list as of a certain that that was available through the state’s payroll system. The requester identified the system directly and even provided the precise 13-step process for producing the list when he DOR denied his request because the FOI request was for the “the request of a record that does not exist.”

The Commission quickly dispatched the DOR’s response, citing Connecticut General Statutes § 1-211, which states that:

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.

The case is Findley v. Law, Doc. No. FIC 2009-093 (June 25, 2009). It be be read in full here.

Connecticut Freedom of Informaition Commission Decisions / Freedom of Information Law — 2 Comments
15
Sep 09

Four month wait for records is too long

It must be prisoner FOI week over at the Law Tribune, because we have a second inmate records request decision in this week’s issue. In fact, it is the same inmate. In this request, the inmate wanted questions answered about a policy that forbids prisoners from wearing boots. He also wanted a copy of the policy, which he was given four months after his request.

So what did the FOIC have to say about this frequent fliers appeal?

First the bad news for the DOC. The four month delay did not comply with the FOIA’s promptness provisions of General Statutes §§ 1-210(a) and 1-212(a). But what about the good news? They don’t have to answer questions about the policy. The FOIA does not force the DOC to answer the inmates questions. That would require creation of new records and the Freedom of Information Act only applies to records that have already been created.

The case was Elliot v. McGill, Doc. No. FIC 2008-601. You can read it here.

Connecticut Freedom of Informaition Commission Decisions / Freedom of Information Law — 1 Comment
14
Sep 09

FOI on the 4th of July!

This week’s Law Tribune has a case summary of Elliott v. Warden, Doc. No. FIC 2008-627 (July 1, 2009). The case involves Connecticut General Statutes § 1-210(b)(18) and the public safety exception for Department of Corrections’ records. Elliot, an inmate, wanted records for July 4, 2008, when he claimed to have been placed in lock down during a staff cookout. The Commission said that the “safety risk” exception applied. You can read the full Final Decision on the FOIC website.

Connecticut FOI Law Blogby Attorney Mark Dumas