CLERK OF THE COMMON COUNCIL v. FREEDOM OF INFORMATION COMMISSION ET AL.
AC 44284
SEBASTIAN GIULIANO ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
AC 44295
Appellate Court of Connecticut
September 27, 2022
Moll, Alexander and Suarez, Js.
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Syllabus
In each of two cases, the defendant Freedom of Information Commission appealed from the judgment of the trial court sustaining an appeal from the commission‘s decision ordering the disclosure of unredacted records after rejecting the claims of the city of Middletown that the requested information was protected. A city employee alleged that the city‘s mayor had harassed her and a union representing city employees alleged that the mayor had improperly solicited campaign contributions from its members. In response to these complaints, the city‘s legislative body, the common council, hired a law firm to conduct an investigation. In the first case, the defendant D, a former member of the common council, sent a request to the plaintiff, the clerk of the common council, for, inter alia, invoices submitted to the city by the law firm in connection with its investigation. In response, the clerk sent D the requested records after redacting the names of city employees and the dates on which meetings occurred between those employees and the law firm‘s attorneys. Thereafter, D filed a complaint with the commission challenging the redactions with respect only to the name of the clerk and the dates of the meetings. Following a hearing, the commission ordered that the requested records be produced without the contested redactions. The clerk appealed to the trial court, which sustained her objection, determining that the redacted information was exempt from disclosure pursuant to the applicable statute (
In the second case, the defendant mayor filed a complaint with the commission after the clerk produced redacted records in response to his request for, inter alia, communications between the law firm and the city. The commission ordered the disclosure of certain records but permitted the redaction of the names of then current city employees and their job titles. Thereafter, the plaintiffs, two members of the common council and the clerk, appealed to the trial court. The trial court sustained the appeal of the common council members, determining that the records at issue were exempt from disclosure pursuant to
1. With respect to the commission‘s appeal in the first case, AC 44284, the trial court did not err in concluding that the records at issue were similar in nature to personnel files and constituted similar files under
2. With respect to the commission‘s appeal in the second case, AC 44295, the case was remanded to the commission for further factual findings because the commission had failed to make determinations concerning two of the Shew test factors, namely, whether, pursuant to
Argued November 9, 2021—officially released September 27, 2022
Procedural History
Appeal, in the first case, from the decision of the named defendant ordering the disclosure of certain unredacted billing records, brought to the Superior Court in the judicial district of New Britain and tried to the court, Cordani, J.; judgment sustaining the plaintiff‘s appeal, from which the named defendant appealed to this court; appeal, in the second case, from the decision of the named defendant ordering the disclosure of certain unredacted email records, brought to the Superior Court in the judicial district of New Britain and tried to the court, Cordani, J.; judgment dismissing the appeal of the plaintiff Linda Reed and sustaining the appeal of the named plaintiff et al., from which the named defendant appealed to this court; thereafter, this court granted the named defendant‘s motion to consolidate the appeals. Reversed in part; further proceedings in Docket No. AC 44284; reversed; further proceedings in Docket No. AC 44295.
Danielle L. McGee, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellant (named defendant in both appeals).
Michael C. Harrington, for the appellees (plaintiff in Docket No. AC 44284
Opinion
ALEXANDER, J. These consolidated appeals arise out of an investigation by the city of Middletown (city) into alleged improprieties by the former mayor and the city‘s subsequent refusal to provide unredacted records related to that investigation on the ground that the records were not subject to disclosure under the Freedom of Information Act (act),
I
AC 44284
We first address the appeal brought under Docket No. AC 44284. The following facts and procedural history are relevant to our resolution of this appeal. In December, 2017, a city employee complained that the mayor, Daniel Drew, unlawfully had harassed her. Additionally, a union representing city employees sent a letter to the city alleging that the mayor improperly had been soliciting campaign contributions from city employees. In response, the common council, which is the city‘s legislative body, hired an outside law firm, LeClairRyan, to conduct an investigation into the complaints. Attorney Margaret Mason of LeClairRyan served as lead counsel on the investigation. The common council also created a special investigative sub-committee, which was comprised of three of the common council‘s twelve members: Bartolotta, Giuliano, and Thomas Serra.
On September 7, 2018, Gerald Daley, a former member of the common council, sent a records request to the clerk of the
Thereafter, Daley filed a complaint with the commission and a contested case hearing was held on January 3, 2019. At the hearing, Daley indicated that he was challenging only the redactions of the clerk of the common council‘s name and the dates of the meetings between city employees and LeClairRyan attorneys. He did not challenge the redactions of the names of other city employees. The common council asserted that the redacted portions of the records were exempt from public disclosure pursuant to
On September 17, 2019, the commission issued its final decision in which it ordered that the requested records be produced without redactions of the clerk of the common council‘s name and the dates and locations of interviews. The commission determined that the requested records are public records within the meaning of
Thereafter, the clerk of the common council appealed to the Superior Court. On September 3, 2020, after a hearing, the court issued a memorandum of decision sustaining the appeal and rendering judgment for the clerk of the common council. In its decision, the court concluded that the redacted information was exempt from disclosure pursuant to both
First, the court determined that the redaction of the clerk of the common council‘s name was exempt from disclosure pursuant to
The court reasoned that the clerk of the common council “participated in the investigation to facilitate the investigation on behalf of the common council, and also potentially as a witness, whistleblower and/or complainant. Our Supreme Court has recognized the concern associated with disclosing the identifying information of individuals who report harassment or who participate in an investigation concerning allegations of harassment in the workplace. . . . [R]evealing the identity of such complainants or participants in a harassment investigation in this context could facilitate retaliation and could inhibit people from participating in such investigations. In this case, that concern is heightened because Daley has consented to the redaction of the names of all current city employees except solely for that of the clerk of the common council. This focus on a particular city employee gives an even higher degree of concern.” (Citations omitted.) The court found that the information sought from the records did not relate to legitimate matters of public concern and that disclosure would be highly offensive to a reasonable person because it would facilitate retaliation and would inhibit future participation in such investigations.7
The court further concluded that the redacted information in the invoices relating to the names of city employees interviewed by attorneys from LeClairRyan, as well as the time spent on each interview and the date and place of each interview, were protected by the attorney-client privilege. It explained that, although “attorney invoices may not necessarily be entirely privileged, the information contained in the invoices must be analyzed in the same way any communication between the attorney and the client is analyzed for privilege. . . . [T]he applicability of the attorney-client privilege to the information in question is apparent from the documents themselves, the context of the harassment allegations, and the attorney‘s assignment to conduct a
We begin by setting forth our standard of review and the legal principles that guide our analysis. “The scope of our review of the merits of the plaintiffs’ argument is governed by a provision of the [act],
“By way of background, we discuss briefly the policy of the act. [T]he overarching legislative policy of [the act] is one that favors the open conduct of government and free public access to government records. . . . [I]t is well established that the general rule under the [act] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the [act]. . . . [Thus] [t]he burden of proving the applicability of an exception [to disclosure under the act] rests upon the party claiming it.” (Citations omitted; footnote added; internal quotation marks omitted.) Lindquist v. Freedom of Information Commission, 203 Conn. App. 512, 525–26, 248 A.3d 711 (2021).
A
We first address the commission‘s claim that the court erred in concluding that the invoices at issue are personnel or similar files. We disagree.
The terms “personnel” and “similar” files are not defined in the act; however, our courts have interpreted the meaning and scope of such terms. “We interpret the term ‘similar files’ to encompass only files similar in nature to personnel or medical files.” Id., 40. Our Supreme Court has stated that a determination of whether a file is similar to a personnel file “requires a functional review of the documents at issue. . . . [A] ‘personnel’ file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved. If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is ‘similar’ to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered ‘similar’ to a personnel file for the purposes of [
In Connecticut Alcohol & Drug Abuse Commission, the records at issue pertained to an investigation regarding complaints of sexual harassment filed by police officers against a fellow officer. Id., 30–31. Our Supreme Court concluded that the investigation file was a “‘similar‘” file and explained that, although “reports of incidents occurring in the workplace are not ‘personnel files’ per se, they may be similar to personnel files in that they may contain information that would ordinarily be considered in making personnel decisions regarding the individuals involved. Such reports would be functionally similar to information contained in the individual‘s personnel files. [
In Almeida v. Freedom of Information Commission, 39 Conn. App. 154, 155, 158, 664 A.2d 322 (1995), this court held that an investigative file regarding an altercation between the plaintiff, who was a guidance counselor, and a student was a personnel or similar file. The records at issue “were kept in a locked location separate from any personnel file, [but] contained the following: descriptions of the incident which took place in an open classroom; a list of exhibits, including a classroom description, pertinent public acts, school policy and faculty handbooks; the names of individuals providing statements; names, ages and grades of student witnesses interviewed; the name of the teacher‘s union representative, a description of the fact-finding efforts and a statement of the case status; statements of . . . the complainant‘s son, and two other teachers; and an overhead chart of the classroom and desk arrangement.” (Internal quotation marks omitted.) Id., 159–60. The court explained that “[t]he documents in the file contain information relevant to ascertaining whether the plaintiff assaulted a student and were reviewed to determine whether the plaintiff was to be exonerated or whether he was to be subject to disciplinary action, or perhaps even discharged, as a result of the incident. The cumulative effect of these documents, therefore, had a direct bearing on the employment status of the plaintiff.
In Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 628, 609 A.2d 998 (1992), our Supreme Court held that “a permit to carry a pistol or revolver is not ‘similar’ to a medical or personnel file” and, therefore, the information therein was not exempt from disclosure pursuant to
The question before this court is whether the commission properly determined that the attorney invoices are not personnel or similar files. We conclude, as did the court, that the commission incorrectly determined that the attorney billing records are not personnel or similar files within the meaning of
B
The commission next argues that the court erred in making factual findings because the commission did not make any determination as to whether disclosure of the redacted information would constitute an invasion of personal privacy under
C
Finally, the commission argues that the court erred in concluding that the name of the clerk of the common council and the dates of interviews by counsel with city employees are exempt from disclosure as privileged attorney-client communications.10 We agree.
“[T]here is a general agreement that attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed . . . . Thus, statements and records that simply reveal the amount of time spent, the amount billed, and the type of fee arrangement between the attorney and the client are fully subject to discovery.” (Emphasis in original; internal quotation marks omitted.) Pryor v. Pryor, Superior Court, judicial district of Fairfield, Docket No. FA-08-4026674-S (January 22, 2010) (49 Conn. L. Rptr. 274, 275); see also Bernstein v. Mafcote, Inc., 43 F. Supp. 3d 109, 115 (D. Conn. 2014) (billing records not subject to attorney-client privilege because “they do not reveal the specific nature of the services provided, but rather only reveal the general nature of work performed“). Information contained in invoices, however, that reveals “the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided . . . fall within the privilege.” (Emphasis omitted; internal quotation marks omitted.) Bruno v. Bruno, Superior Court, judicial district of Danbury, Docket No. FA-05-40049006-S (July 10, 2009). Furthermore, a client‘s identity and information related to where and when a client has conversations with his or her attorney do not fall within the attorney-client privilege. See Ullmann v. State, 230 Conn. 698, 712, 647 A.2d 324 (1994) (“the mere fact that a meeting took place between [an attorney] and his client did not constitute a communication and such information is not privileged for that reason“); New Haven v. Freedom of Information Commission, 4 Conn. App. 216, 220, 493 A.2d 283 (1985) (affirming commission‘s order compelling disclosure of number of billing hours and general subject matter designations on billing invoices and stating that “[q]uestions as to where and when a client had conversations with his attorney have been found not to be within the attorney-client privilege“).
On the basis of our thorough review of the record, we cannot conclude, as the trial court did, that the commission acted unreasonably, arbitrarily, illegally, or in abuse of its discretion in concluding that the name of the clerk of the common council, to the extent it appears in the invoices, and the dates of interviews, were not exempt from disclosure. The four part test for identifying communications protected by the attorney-client privilege has not been met.
The clerk of the common council is a city employee and a representative of the client, the common council. Similar to the facts of Ullmann v. State, supra, 230 Conn. 712, the mere fact that a meeting took place between the LeClairRyan attorneys and the clerk of the common council, a representative of the client, does not constitute a privileged communication. Further-more, the disclosure of the name of the clerk of the common council would not reveal “the substance of any communication‘“; id.; that the clerk of the common council had with the LeClairRyan attorneys and, therefore, would not reveal the specific nature of the services provided.
Accordingly, in AC 44284 we affirm the judgment of the court with respect to its determination that the attorney invoices are personnel or similar files. With respect to the court‘s determination that disclosure of the redacted information would constitute an invasion of personal privacy pursuant to
II
AC 44295
We now turn to the appeal brought under Docket No. AC 44295. The following facts and procedural history are relevant to our resolution of this appeal. On August 7, 2018, Daniel Drew sent a records request to the clerk of the common council requesting, inter alia, “copies of any and all [emails], text messages, calendars, written communications in any form, [unredacted] legal bills, and cellular telephone logs pertaining to this investigation between members of the subcommittee, any employee/associate/partner of [LeClairRyan], and any staff of the city . . . .” In response to his request, Drew received “a large package of records,” some of which had been redacted.
Thereafter, Drew filed a complaint with the commission, and a contested case hearing was held on January 3, 2019. At the hearing, Drew indicated that he was not challenging the redactions in the records he had already received but, instead, argued that there were additional responsive records, such as emails, that had not been disclosed. Drew further contended that the common council lacked the authority to hire an attorney for the purpose of receiving legal advice, and, therefore, none of the requested records should be exempt pursuant to the attorney-client privilege. The common council contended that the records were exempt from disclosure pursuant to
On September 17, 2019, the commission issued its final decision in which it ordered the common council to disclose certain records identified in paragraph 48 of its final decision but permitted the redaction of the names of any current city employees, as well as their job titles. The commission determined that the requested records are public records within the meaning of
Thereafter, Giuliano, Bartolotta,11 and Linda Reed,12 appealed to the Superior Court. On September 10, 2020, after a hearing, the court issued a memorandum of decision sustaining the appeal and rendering judgment for Giuliano and Bartolotta. In its decision, the court concluded that the records at issue, identified in paragraph 48 of the commission‘s final decision, were protected by the attorney-client privilege and, therefore, were exempt from disclosure pursuant to
The court identified the four part test used to determine whether information is covered by the attorney-client privilege and determined that three of the four prongs were clearly met. See Shew v. Freedom of Information Commission, supra, 245 Conn. 159. “[T]here is no doubt that the LeClairRyan attorney was acting in her professional capacity as an attorney. The attorney was hired to conduct a workplace harassment investigation and report her findings and recommendations to the common council. The documents in question are clearly communications between the attorney and either the clerk of the common council, who acted as an agent for the common council, or other employees of the city who were participating in the investigation being conducted by the attorney. The communications were made in confidence and were confidential absent some disclosure here. Thus, the only remaining element to be considered is whether the communications were related to legal advice.” The court characterized the documents at issue as communications from (1) the clerk of the common council providing information to the attorney in furtherance of the attorney‘s investigation, (2) employees of the city seeking to speak with the attorney in connection with the attorney‘s investigation, each of whom was officially interviewed by the attorney in the conduct of her investigation, (3) the attorney to the clerk of the common council conveying information about the investigation, (4) the attorney to the common council members concerning the investigation, and (5) the attorney to specific city employees concerning interviewing the employees as part of the attorney‘s investigation.
The court explained that, “[a]lthough some of these documents contain logistical information concerning the investigation, the information in the documents in question: (i) supports the results of the investigation, (ii) reveals the attorney‘s thinking and strategy concerning the investigation by revealing her choices of information needed, employees to interview, and the time spent with each employee, (iii) potentially suggests to the alleged harasser the results of the investigation by revealing whether the correct employees were interviewed, (iv) gives indications of what information certain employees have relevant to the investigation and the employees’ attitudes, and (v) reveals the thoroughness of the investigation and the nature of the services provided. Clearly, the foregoing documents relate to the legal advice to be provided, and the communications made therein were made in furtherance thereof.” This appeal followed.
We begin with our standard of review and the legal principles relevant to our resolution of this claim. As we stated in part I of this opinion, “[t]he scope of our review of the merits of the [plaintiff‘s] argument is governed by a provision of the [act] . . .
As we set forth in part I C of this opinion, we apply a four part test to determine whether communications are privileged: “(1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.” (Footnote omitted; internal quotation marks omitted.) Shew v. Freedom of Information Commission, supra, 245 Conn. 159.
In considering the first prong of the test, the court properly determined that, consistent with the commission‘s finding, an attorney-client relationship had been established between LeClairRyan and the common council and that the common council‘s purpose in hiring LeClairRyan was to “investigate the complaints and to provide legal advice.” The LeClairRyan attorneys, therefore, were acting in a professional capacity when communicating with city employees.
With respect to the third prong, whether the communications relate to the legal advice sought by the common council, we agree with the court‘s conclusion that the information contained in the documents at issue were made in furtherance of the investigation and, therefore, related to the legal advice to be provided. “Not every communication between attorney and client falls within the privilege. A communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked to the giving of legal advice.” Ullmann v. State, supra, 230 Conn. 713. “[I]t is not required that the [legal] advice [sought] must pertain to contemplated or pending litigation. . . . Moreover, the communication need not expressly seek legal advice. . . . The privilege merely requires that the client be consulting an attorney for professional advice, and [a]ny type of legal advice will qualify . . . .” (Citations omitted; internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 13, 826 A.2d 1088 (2003). Furthermore, “the privilege extends to the giving of information to the lawyer to enable counsel to give sound and informed [legal] advice.” (Internal quotation marks omitted.) Id., 14. The communications at issue did not expressly ask any legal questions; however, the information
We agree, however, with the commission‘s contention that it did not make a determination concerning two of the Shew factors, namely, whether the communications were made between employees of the city and the LeClairRyan attorneys and whether the communica-tions were made in confidence. Consequently, we remand the case for further factual findings by the commission with respect to those questions. See Shew v. Freedom of Information Commission, supra, 245 Conn. 160–61 (“The commission . . . made no findings concerning . . . two requirements, namely, whether the persons interviewed were employees or officials of the town at the time of the interviews, and whether the communications were made in confidence. Consequently, a remand for further factual findings by the commission with regard to these questions is necessary.“).
Accordingly, the judgment of the court is reversed with direction to remand the case to the commission for a determination as to whether, pursuant to
In Docket No. AC 44284, the judgment is reversed with respect to the determination that the name of the clerk of the common council and the dates of interviews are exempt from disclosure pursuant to
In Docket No. AC 44295, the judgment is reversed and the case is remanded with direction to remand the case to the commission for further proceedings consistent with this opinion.
In this opinion the other judges concurred.