215 Conn.App. 404
Conn. App. Ct.2022Background
- Middletown common council hired LeClairRyan to investigate allegations that the mayor harassed an employee and solicited campaign contributions from city employees.
- Former council member Daley and mayor Drew requested unredacted billing records and communications; the clerk produced records with redactions of employee names (including the clerk) and interview dates/locations.
- Daley and Drew filed FOI complaints; the Freedom of Information Commission (FOIC) ordered disclosure of certain redactions and reviewed records in camera.
- At trial (two consolidated appeals): the court held invoices were personnel/similar files and that disclosure would invade privacy; it also found some names/dates and certain emails privileged under the attorney-client privilege for the plaintiffs (clerk, Giuliano, Bartolotta).
- On appeal the Appellate Court: affirmed that the invoices are personnel/similar files; reversed the court’s privilege ruling for names/dates in invoices and remanded for FOIC fact‑finding on whether disclosure would invade privacy; reversed and remanded AC 44295 because FOIC had not made findings on key Shew privilege factors (employee status and confidentiality).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney invoices are "personnel or similar files" under §1-210(b)(2) | Clerk: invoices arise from a personnel investigation but FOIC incorrectly treated them as ordinary billing records | FOIC: invoices are not personnel/similar files and therefore not exempt | Court of Appeals: invoices are similar to personnel files (affirmed) |
| Whether disclosure of redacted names/dates would constitute an invasion of personal privacy under §1-210(b)(2) | Clerk: disclosure would enable retaliation and chill participation in investigations | FOIC: did not reach privacy analysis after concluding records were not personnel files | Remanded to FOIC for factual findings whether disclosure would invade privacy (trial court’s privacy ruling reversed) |
| Whether the clerk’s name and interview dates/locations are protected by attorney-client privilege §1-210(b)(10) | Clerk: meetings and related invoice entries reflect privileged communications | FOIC: names/dates do not reveal substance of legal advice or strategy | Court of Appeals: privilege test (Shew) not met for names/dates; not privileged (reversed trial court) |
| Whether certain emails/communications are privileged and whether FOIC made required Shew findings | Giuliano/Bartolotta: emails relate to legal advice and were confidential | FOIC: some records were legal communications but FOIC failed to make findings on employee status and confidentiality | Remanded: FOIC must make factual findings on whether communications were between employees and attorneys and were made in confidence (trial court’s privilege ruling reversed) |
Key Cases Cited
- Shew v. Freedom of Information Commission, 245 Conn. 149 (Conn. 1998) (sets four‑part test for attorney‑client privilege in FOIA context)
- Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28 (Conn. 1995) (defines "personnel or similar files" and two‑part test including privacy invasion)
- Ullmann v. State, 230 Conn. 698 (Conn. 1994) (mere fact that a meeting occurred is not a privileged communication)
- Rocque v. Freedom of Information Commission, 255 Conn. 651 (Conn. 2001) (investigative files can be "similar" to personnel files)
- Lash v. Freedom of Information Commission, 300 Conn. 511 (Conn. 2011) (attorney‑client privilege elements under statute and common law align)
- Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1 (Conn. 2003) (privilege extends to information given to lawyer to enable legal advice)
- Harrington v. Freedom of Information Commission, 323 Conn. 1 (Conn. 2016) (privilege must be shown for each document and narrowly applied)
- Lindquist v. Freedom of Information Commission, 203 Conn. App. 512 (Conn. App. 2021) (standard of review and agency deference in FOI appeals)