Groton appeals Freedom of Information Commission decision
Jul. 4—GROTON — The town is appealing a Freedom of Information Commission decision ordering the release of communications related to short-term rentals that the town says are protected by attorney-client privilege.
The Freedom of Information Commission wrote in an April 15, 2024, decision that attorney-client privilege was waived for portions of records, after a town attorney disclosed their substance at a public meeting, and the town violated Freedom of Information statutes by withholding them.
The town is arguing in its appeal that the town never disclosed them in a public meeting.
Town Manager John Burt said the ruling could create a much broader issue for all municipalities.
"We are disappointed that Groton has taken an appeal," said Russell Blair, director of education and communications for the Freedom of Information Commission. "The commission believes its decision is fair and correct under the law and will defend it during the appeal process."
The decision stems from a complaint filed last year on behalf of Bruce A. McDermott and Heather A. Sutter regarding the town's response to a Freedom of Information request for the release of documents.
In January 2023, Edward E. Moukawsher, an attorney representing McDermott and Sutter, requested any documents by the town attorney and town's zoning official that stated that "...the longstanding opinion of the Town's Zoning Official and the Town Attorney that the definition of "dwelling" covers all rentals no matter the length of stay. Therefore, STRs are currently an unregulated allowed use."
That language was in a draft memo from a consultant helping the town create regulations for short-term rentals.
The Planning and Zoning Commission this spring passed regulations for new short-term rentals.
Moukawsher also requested communications regarding the change between that memo and a later version that instead said, "Historically, Groton has not regulated STRs and has told anyone who inquired that they are not regulated."
Town Attorney Richard S. Cody wrote in an email to Moukawsher that: "Any opinion from our office would be privileged. We did not provide any written opinion, copy or original, to the zoning consultants."
Moukawsher wrote that he disagreed that the opinion of the town attorney is privileged and would be filing a complaint.
Freedom of Information Commission Executive Director and General Counsel Colleen M. Murphy, who was the hearing officer, wrote in her report, accepted by the commission, that the town too narrowly interpreted the request to mean documents containing the exact language used by the consultant.
She wrote that the town provided documents related to the second part of the Freedom of Information request about changes to the memo.
Murphy argued that the attorney-client privilege for portions of the records was voluntarily waived at a June 15, 2022, Planning and Zoning Commission meeting where Cody said the town's practice is that short-term rentals are not regulated and that the building official feels a short-term rental falls under the definition of a dwelling unit and can't be prohibited.
She said some portions of the records are still exempt from disclosure under attorney-client privilege.
After an executive session last week, the Town Council voted 8-1, with Town Councilor Portia Bordelon opposed, to authorize the town attorney to appeal the final decision of the FOIC to the Connecticut Superior Court.
The appeal, by the town manager and the town, calls for a reversal of the commission's decision and a review, under a new standard, of the decision to disclose attorney client privileged documents, as well as relief.
In the appeal, Cody disagreed with the Freedom of Information Commission that there was a waiver of confidential email communications and wrote that town staff and the town attorney generally discussed the applicability of zoning regulations to short-term rentals during the Planning and Zoning Commission.
"None of the said privileged email communications were disclosed or discussed in that meeting," he wrote.
Cody said the consultant's statement of a "longstanding" opinion was made in error, and it was corrected in the next version of the memo.
Cody also said none of the emails could be considered "longstanding" or "long held."
McDermott, a Mystic resident, said he made the Freedom of Information request to find out how the town arrived at the decision that short-term rentals were an allowed use, which did not make sense to him.
He wrote a letter to the town last week to ask that the town not appeal the decision due to the legal expense and the Freedom of Information Commission's unanimous decision against the town.
He said the town now has regulations in place for short-term rentals. The regulations ― among other components ― allow only owner-occupied short-term rentals in key residential areas, which was his main concern.
