University of Connecticut Health Center v. Freedom of Information Commission et al. (2012)

MEMORANDUM OF DECISION

The plaintiff, state of Connecticut, University of Connecticut Health Center (the university) appeals ¹ from a December 15, 2010 final decision of the defendant Freedom of Information Commission (FOIC) in response to the complaint of the defendant Priscilla Dickman (Dickman).   In this appeal, the university has only appealed from the portion of the final decision in which the FOIC rejected the applicability of an exemption to the Freedom of Information Act (FOIA), General Statutes § 1–210(b)(1) (“Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”)

The relevant findings of the FOIC on the appealed issue in the final decision are as follows:

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2. It is found that on February 2, 2010, the complainant made a written request to the respondents for all e-mails that referenced the complainant sent or received by three named individuals from May 2004 through January 28, 2010.

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4. By letter filed on February 11, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to respond to her request, described in paragraph 2, above.

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8. It is concluded that the records requested by the complainant are public records within the meaning of §§ 1–200(5), 1–210(a), and 1–212(a), G.S.

9. It is found that on April 6, 2010 the respondents provided 141 pages of records, some with redactions.

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18. The respondents also claim that § 1–210(b)(1), G.S., exempts some of the records from mandatory disclosure.

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20. Upon careful examination of the records claimed to be exempt pursuant to § 1–210(b)(1), G.S., as referenced in the Index, it is found that the redactions claimed as to IC–2010–092–7, 9, 25, 26, 30, 31, 32, 41, 42, are not preliminary notes or drafts, within the meaning of § 1–210(b)(1), G.S.

21. It is further found that the records referenced in paragraph 20, above, are intra-agency records comprising part of the process by which governmental decisions and policies are formulated, within the meaning of § 1–210(e)(1), G.S., and that none is a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of the respondents.

22. It is concluded, therefore, that the records referenced in paragraph 20, above, are not exempt from disclosure and the respondents violated the FOI Act by failing to provide them to the complainant.

23. With respect to IC–2010–092–43 through IC–2010–092–50, it is found that the respondents redacted preliminary drafts, and that the respondents determined that the public interest in withholding such documents clearly outweighed the public interest in disclosure.

24. It is found, however, that the preliminary drafts were provided to respondents' Direction of Labor Relations for review and decision;  such intra-agency records comprised part of the process by which governmental decisions and policies were formulated, within the meaning of § 1–210(e)(1), G.S.

25. It is concluded, therefore, that the records referenced in paragraph 23, above, are not exempt from disclosure and the respondents violated the FOI Act by failing to provide them to the complainant.

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

1.  The respondents shall provide forthwith to the complainant the records referenced in paragraphs 20 and 23 of the findings of fact.  (Return of Record, ROR, pp. 164–67.)

The university timely appealed from the FOIC's final decision.   Subsequently on February 9, 2012, the parties agreed to submit the in camera records under seal to the court.²  The court has reviewed each of the records submitted in camera to determine whether the FOIC has acted correctly in determining whether the exemption applies.   The court has conducted its own review under the authority of § 1–206(d) and Shew v. Freedom of Information Commission, 44 Conn.App. 611, 621, 691 A.2d 29 (1997), aff'd, 245 Conn. 149, 714 A.2d 664 (1998) (approving trial court's conclusion after in camera review that five documents were “either unfinished or preliminary.”)

The university argues that the records in question are “preliminary drafts or notes.”   A record is “preliminary” if it “precedes formal and informed decision making ․ It is records of this preliminary, deliberative and predecisional process that we conclude the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165, 714 A.2d 664 (1998), quoting Wilson v. Freedom of Information Commission, 181 Conn. 324, 332–33, 435 A.2d 353 (1980).   In Wilson, the Court also observed that a preliminary document often plays a part in the agency's exchange of options of how to proceed in a certain matter.  Id., 333.   A “preliminary” record is one containing “data not required or germane to the eventual purpose for which [it] was undertaken and it was therefore modified to excise the material that was irrelevant to its ․ purpose.”  Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 343, 559 A.2d 200 (1989).

Shew v. Freedom of Information Commission, supra, 245 Conn. 164–65, further analyzes “preliminary,” quoting in part from Van Norstrand and Wilson:  “Examining, first, the common meaning of the words contained in this phrase, we observed that ‘preliminary’ is defined as ‘something that precedes or is introductory or preparatory.’   As an adjective it describes something that is ‘preceding the main discourse or business.’   A ‘draft’ is defined, as ‘a preliminary outline of a plan, document or drawing ․’ American Heritage Dictionary of the English Language.   By using the nearly synonymous words ‘preliminary’ and ‘draft,’ the legislation makes it very evident that preparatory materials are not required to be disclosed ․ Furthermore, the concept of preliminary, as opposed to final, should not depend upon ․ whether the actual documents are subject to further alteration.”  (Brackets omitted;  internal quotation marks omitted.)   See also Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 73 Conn.App. 89, 98, 806 A.2d 1130 (2002), cert. denied, 262 Conn. 932, 815 A.2d 132 (2003) (agency had complied documents contemplating future contract and thus the requested documents were preliminary).

This precedent was also followed in Lewin v. Freedom of Information Commission, 91 Conn.App. 521, 881 A.2d 519, cert. denied, 276 Conn. 921, 888 A.2d 88 (2005).   There, the Appellate Court did not have to determine whether the records were “preliminary,” as the parties did not dispute “that the notes taken by the acting chairman are preliminary notes.”  Id., 526.   These were described as handwritten notes taken during a probable cause investigation of a town officer for violation of municipal ethics code, “containing the acting chairman's summary of witness testimony, his impressions of the credibility of witnesses and his theories of the case.”  Id., 523.

The court concludes that a preliminary draft or note under § 1–210(b)(1) is one which is (1) preparatory, (2) not a complete resolution of a matter in itself, (3) not germane to the eventual end product of the record, and (4) takes the form of deliberation over a matter.   A document that is final in itself and not deliberative does not qualify for the exemption.

Under these constraints, the court has undertaken an in camera review of the documents under seal in this appeal.   The records set forth in Finding 20 were held by the FOIC not to be exempt under § 1–210(b)(1).   The court cannot find any reason to differ with the FOIC's analysis.   Two documents are 2009 requests from a university staff member to obtain information regarding a proceeding involving the complainant at the university in 2005 and responses to the request.   This exchange is complete in itself, and not deliberative;  thus it is not a preliminary draft or note.

Other documents referenced in Finding 20 are taken from the course of the 2005 proceeding, such as a statement of the complainant's attendance and a request to run an audit.   These documents also involve permission to use a computer program to obtain information.   These again are final, non-deliberative matters.³

Finding 23 lists the second set of documents.⁴  The court reviewed these documents as well under the standard stated about for preliminary drafts and notes.   Items 43 and 49 are identical.   As to this document (Item 43/49) and Item 48 the court agrees with the FOIC that while these documents are preliminary, they were disclosed to the recipient as part of an intra-agency communication.   Therefore, they are subject to disclosure pursuant to § 1–210(e)(1).   The court rejects the university's contention that the recipient of the e-mails in question was part of the investigative team.   This contention is not supported by the record.  (ROR, pp. 44–45, 57–58.)

The appeal is dismissed as to all documents referenced in Finding 20 and those specified above by the court from Finding 23.   As to the remaining documents (in camera items 44, 45, 46, 50), pursuant to an oral argument held on February 17, 2012, further briefing is to take place and the court will rule on these documents thereafter.⁵

Henry S. Cohn, Judge

FOOTNOTES

FN1. The university is aggrieved for purposes of § 4–183(a), as it has been ordered to release certain records to Dickman..  FN1. The university is aggrieved for purposes of § 4–183(a), as it has been ordered to release certain records to Dickman.

FN2. The appropriate steps under Practice Book § 11–20A to seal the records in this court were taken by the FOIC..  FN2. The appropriate steps under Practice Book § 11–20A to seal the records in this court were taken by the FOIC.

FN3. The court also agrees with the FOIC that these documents are not subject to an exemption because of § 1–210(e)(1).   The documents at issue were part of the process by which government decisions are completed..  FN3. The court also agrees with the FOIC that these documents are not subject to an exemption because of § 1–210(e)(1).   The documents at issue were part of the process by which government decisions are completed.

FN4. The parties agree that item 47 is not exempt and should not have been included in Finding 23..  FN4. The parties agree that item 47 is not exempt and should not have been included in Finding 23.

FN5. As to these documents, the parties are to brief whether the university may raise the FOIA exemption of attorney-client privilege in this court or whether the attorney-client privilege has been waived.   Further, assuming that the university may raise the exception to disclosure, does the attorney-client privilege apply to any or all of the documents?.  FN5. As to these documents, the parties are to brief whether the university may raise the FOIA exemption of attorney-client privilege in this court or whether the attorney-client privilege has been waived.   Further, assuming that the university may raise the exception to disclosure, does the attorney-client privilege apply to any or all of the documents?

Cohn, Henry S., J.