DocketNumber: No. CV 93 006 89 88
Citation Numbers: 1995 Conn. Super. Ct. 3001, 14 Conn. L. Rptr. 27
Judges: MALONEY, J.
Filed Date: 3/29/1995
Status: Non-Precedential
Modified Date: 7/5/2016
The plaintiff's complaint to the commission had its origin in the aftermath of an earlier complaint that he brought in 1992. That earlier complaint, which was commission docket 90-148, was dismissed following an agreement between the plaintiff, as complainant, and the University of Connecticut and others, as respondents. The agreement called for the respondents to provide the plaintiff with copies of all records in their possession that pertained to him. Subsequently, the plaintiff, suspecting that the respondents had not fully complied, brought a series of complaints to the commission. These subsequent complaints are not at issue here. In 1992, however, the plaintiff brought the instant complaint against Attorneys General Shapiro and Urban, who had represented the original respondents, claiming that the attorneys had neglected or refused to turn over copies of all the records that the respondents had agreed to provide. CT Page 3002
At the commission hearing, defendant Urban testified that he had personal knowledge of the records pertaining to the plaintiff. He stated that copies of all of those records had been furnished to the plaintiff except certain documents that were exempt from -disclosure pursuant to General Statutes §
In its final decision, the commission adopted the finding of the hearing officer, Commissioner Deane C. Avery, that the defendants were in possession of public records pertaining to the plaintiff, but that the documents were exempt under §
In his appeal, the plaintiff advances four arguments: (1) that the defendants violated the previous agreement to disclose to him all public records pertaining to him in their possession; (2) that the commission failed to "verify those exemptions;" (3) that certain of the members of the commission should have disqualified themselves from adjudicating his complaint; and (4) that this court (J. Walsh, J.) made certain "procedural lapses and other errors . . . in ruling upon preliminary matters relating to the present Administrative Appeal Action."
With respect to plaintiff's claim (4) above, the court holds that this is an inappropriate forum to contest the rulings of another superior court judge. Such rulings become the law of the case and will not be disturbed unless clearly erroneous. Breen v. Phelps,
The plaintiff's claim that certain members of the CT Page 3003 defendant commission should have disqualified themselves on account of bias, number (3) above, may not be sustained. Other than their participation in previous unfavorable rulings, there is no evidence in the record that would support this claim. And an adverse decision is, of course, not sufficient basis for concluding that the official was impermissibly biased. Obeda v. Board ofSelectman,
The plaintiff's argument that the hearing officer failed to "verify" the defendants' claim of exemption, however, is compelling and is dispositive of the appeal.
General Statute §
These general principles impose on the commission "a central role in resolving disputes administratively under the (freedom of information) 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." Wilson v. Freedom ofInformation Commission,
In Wilson and subsequent cases, our courts have CT Page 3004 required the commission to conduct an in camera inspection of documents claimed to be exempt unless there is other evidence or testimony that is sufficiently detailed to provide the commission "an informed factual basis for its decision." Id. 341. See also Board ofEducation v. Freedom of Information Commission,
In the present case, as noted, the only evidence concerning the nature of the documents in question and their potential exemption was the testimony of Mr. Urban, who was claiming the exemption, although it is not clear whether he was doing so in his capacity as attorney or client. The court has reviewed the transcript of his testimony. The witness asserts that he is claiming an exemption for "correspondence, interoffice correspondence between Mr. Shapiro and myself related to strategy and handling and dealing with the avalanche of requests that come from Mr. Lucarelli and who's going to cover all these proceedings, who's going to come today, for example, I think there's probably a memorandum from Mr. Shapiro to me saying I can't go on December 21st, can you please cover it for me."
The question whether communications or documents are protected by the attorney-client privilege is sometimes complicated, often subtle, and rarely obvious. The privilege comes with conditions, distinctions and exceptions. It is axiomatic that not all communications between lawyer and client are protected by the privilege. It is also clear that the privilege may be waived, either expressly or by implication. See, generally, Tait and LaPlante's Handbook of Connecticut Evidence § 12.5.
These considerations lead the court to the conclusion that Mr. Urban's testimony was not "sufficiently detailed . . . to present the commission with an informed factual basis for its decision." It may well be that no testimony or evidence on the record could fulfill that function without compromising the asserted privilege. But that does not mean that the commission must abdicate its responsibility; rather, it may accomplish its mission by means of in camera review of CT Page 3005 the documents in question. Wilson v. FOIC, supra,
At the hearing, the plaintiff clearly and persistently requested the hearing officer to conduct a review of each of the documents that were conceded to be public records pertaining to him but which were assertedly privileged. It was an abuse of discretion not to have done so.
The court's conclusion regarding the required in camera review of the documents in question makes it premature to address the plaintiff's first claim, number (1) above. Following remand and review of the documents, the commission will render a new decision that will determine whether the plaintiff is entitled to disclosure of any records that he has not already received.
The plaintiff's appeal is sustained and the case is remanded to the commission. Pursuant to subsection (k) of General Statutes §
MALONEY, J.