323 Conn. 1
Conn.2016Background
- Michael Harrington requested hundreds of e-mails from the Connecticut Resources Recovery Authority (CRRA) under the Freedom of Information Act (FOIA); CRRA withheld many as attorney-client privileged communications involving outside lawyers Thomas Ritter (Brown Rudnick) and Peter Boucher (Halloran & Sage).
- Ritter had been retained primarily under consultant/liaison agreements (billed as "General Business Advice") rather than under the prior legal services contract; he also performed limited legislative monitoring and advice.
- At FOI Commission hearings, CRRA’s in-house lawyer Laurie Hunt testified that legal advice was often sought or given and sometimes via non‑email channels; CRRA submitted exemption logs and the hearing officer reviewed documents in camera.
- The FOI Commission adopted the hearing officer’s recommendation that all withheld communications were protected under the attorney‑client privilege, applying Shew’s four‑part test and focusing on whether communications were "inextricably linked" to legal advice.
- The trial court affirmed the Commission; Harrington appealed to the Connecticut Supreme Court, which reversed and remanded, holding the Commission applied the wrong standard for communications mixing legal and business advice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether communications containing both business and legal advice are fully privileged | Harrington: privilege does not cover business/lobbying or consultant communications; legal purpose must be primary or predominant | CRRA: many communications were "inextricably linked" to legal advice and thus privileged in full | Court: apply a primary‑purpose test; communications privileged only if legal advice is the dominant purpose; remand to Commission to apply that test |
| Whether communications where attorney was cc'd (not primary recipient) are privileged | Harrington: copying counsel does not make business communications privileged | CRRA: copying counsel was part of keeping attorneys involved and thus supports privilege | Court: copying may be relevant to implied request for legal advice but does not automatically confer privilege; Commission must distinguish addressee vs. cc and examine intent |
| Whether legislative/lobbying communications are privileged | Harrington: legislative or lobbying communications are nonlegal and unprotected | CRRA: some communications concerned proposed legislation affecting CRRA and implicate legal analysis | Court: lobbying updates/summaries are generally not privileged; legal analysis of legislation may be privileged — Commission must assess purpose and context on remand |
| Whether redaction or segregation of legal from nonlegal material is required | Harrington: mixed communications should be disclosed except for separable legal portions | CRRA: treated many documents as wholly privileged | Court: where legal aspects are incidental they should be redacted; where inseparable, privileged only if primary purpose is legal; Commission should attempt redactions where feasible |
Key Cases Cited
- Shew v. Freedom of Information Commission, 245 Conn. 149 (Connecticut 1998) (four‑part test for municipal attorney‑client privilege)
- Ullmann v. State, 230 Conn. 698 (Connecticut 1994) (not every attorney‑client communication is privileged; factual communications privileged only if inextricably linked to legal advice)
- Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145 (Connecticut 2000) (privilege and agent‑participant exceptions; inextricable linkage analysis)
- Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36 (Connecticut 1999) (strong public policy favoring protection of attorney‑client communications)
- Director, Dept. of Information Technology v. Freedom of Information Commission, 274 Conn. 179 (Connecticut 2005) (burden rests on party invoking FOIA exemption)
- In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (mixed legal/business communications: primary purpose and redaction guidance)
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (privilege applies only where necessary to achieve its purpose)
- PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279 (Connecticut 2004) (privilege is narrowly applied and strictly construed)