224 Conn.App. 155
Conn. App. Ct.2024Background
- A managerial-level employee of the Town of Avon created a personal log documenting observed incidents and concerns about the conduct of the town's chief of police over a period of more than a year.
- After discussing these concerns with the town manager, the log was provided to the town manager, who copied it and gave it to the town attorney; the original was returned to the employee.
- Following an investigation prompted by the log, the chief of police was placed on administrative leave and later entered into a severance agreement.
- Joseph Sastre requested all records related to the chief's alleged misconduct under the Connecticut Freedom of Information Act (FOIA); the town provided some records, but not the log.
- The Freedom of Information Commission (FOIC) ordered disclosure of the log, finding it not protected by attorney-client privilege and that it was a public record; the trial court affirmed the Commission's decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the log a public record under § 1-200 (5)? | The log was private, personal notes, not used/retained/received by the town. | The log relates to public business and was received by the town, making it a public record. | The log relates to public business and was received by the town; it is a public record. |
| Does providing the log to the town manager/attorney equate to town receipt under FOIA? | "Received" means for the agency's retention, and the town manager was merely a conduit to the attorney. | Receipt by the town means coming into its possession, even if routed through its attorney. | Possession by the town manager (a town official) counts as receipt by the town. |
| Is the log exempt from disclosure by attorney-client privilege? | The log was provided to the town attorney solely for legal advice and thus privileged. | The log was a preexisting document not created for legal advice, and not privileged. | The log is not privileged; it was not created for seeking legal advice nor as a communication to an attorney. |
| Did the Commission abuse its discretion in its findings? | Commission failed to apply the correct privilege test (Shew). | Commission’s findings and conclusions were supported by substantial evidence and followed the law. | The commission acted reasonably and used proper standards; privilege and record status were analyzed correctly. |
Key Cases Cited
- Perkins v. Freedom of Information Commission, 228 Conn. 158 (Conn. 1993) (public has a right to know about conduct of public employees)
- Hartford v. Freedom of Information Commission, 201 Conn. 421 (Conn. 1986) (disclosure of police misconduct is a matter of public concern)
- Shew v. Freedom of Information Commission, 245 Conn. 149 (Conn. 1998) (four-part test for attorney-client privilege for public entities)
- State v. Kosuda-Bigazzi, 335 Conn. 327 (Conn. 2020) (ways to establish attorney-client privilege for documents)
- Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150 (Conn. App. Ct. 2007) (broad policy favoring disclosure under FOIA)
- Board of Education v. Freedom of Information Commission, 208 Conn. 442 (Conn. 1988) (commission authority to determine existence of public records)