Opinion
Thе named defendant, the freedom of information commission (commission), appeals 1 from the judgment of the Appellate Court reversing the judgment of the trial court in favor of the commission. The commission claims that the Appellate Court *513 improperly concluded that: (1) the plaintiffs, James A. Lash, first selectman of the town of Greenwich (town), and thе town board of selectmen, sustained their burden of demonstrating that certain documents were exempt from disclosure because they were protected by attorney-client privilege; and (2) the commission abused its discretion in assessing a civil penalty against Lash. We affirm the judgment of the Appellate Court except as to its order remаnding the matter to the trial court.
The opinion of the Appellate Court sets forth the relevant facts and procedural history. See
Lash
v.
Freedom of Information Commission,
The trial court dismissed the plaintiffs’ appeal, concluding, inter alia, that the commission properly had found that the plaintiffs had failed to sustain their burden of showing that exhibits K and L were protected by attorney-client privilege
3
and that the commission had not abused its discretion in assessing a penalty against Lash. The plaintiffs moved to reargue, claiming that because the court’s memorandum of decision did not clarify whether the court had conducted an in camera review of exhibits K and L, it was unclear whether the court had concluded that the documents were insufficient on their face to establish that the attorney-client privilege applied. The trial court denied the motion to reargue withоut comment. The Appellate Court reversed the judgment of the trial court, concluding that: (1) the trial court improperly had failed to apply the four factors that this court identified in
Shew
v.
Freedom of Information Commission,
The commission claims that the Appellate Court improperly reversed the judgment of the trial court. Specifically, the commission argues that it correctly had determined that exhibits K and L were not sufficient on their face to establish that the documents were protected from disclosure pursuant to attorney-client privilege. Therefore, the commission argues, because the plaintiffs did not offer extrinsic evidence in support of their claim that the attorney-client privilege аpplied, the plaintiffs failed to meet their burden of establishing that the documents were exempt from disclosure. 4 The plaintiffs contend that the content of the documents should be considered within the circumstances of the case, and that the content, so considered, satisfies the plaintiffs’ burden of establishing that the attorney-client privilege applied. Based on our in camera review of the documents, we agree with the plaintiffs.
As the Appellate Court explained, the question of whether the attorney-client privilege applies to the documents is governed by General Statutes § 1-210 (b) (10),
5
as interpreted by this court in
Shew
v.
Freedom
*516
of Information Commission,
supra,
Although we agree with the Appellate Court that the documents should be reviewed in light of the four factors in
Shew,
we disagree that it is necessary to remand the case to the trial court for that review. In this administrative appeal, the trial court was not the fact finder— any remand for further factual findings properly would be to the commission, not to the trial court. The mere fact, however, that consideration of whether the docu
*517
ments are privileged requires in camera review of them does not, however, necessarily require a remand to the fact finder. We have in the past reviewed the contents of documents to address the propriety of the commission’s determination regarding the applicability of an exemption. See
Stamfords. Freedom of Information Commission,
Our review of the commission’s decision “is governed by the Uniform Administrative Procedure Act [General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that оf the administrative agency. . . . Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.)
Dept. of Public Safety
v.
Freedom of Information Commission,
We therefore turn to exhibits K and L to determine whether the commission acted unreasonably, arbitrarily, illegally, or in аbuse of its discretion in concluding that those documents do not, on their face, establish that the attorney-client privilege applies. Our review of the documents is guided by the principle that the party claiming an exemption from the disclosure requirements of the act bears the burden of establishing the applicability of the exemption.
New Haven
v.
Freedom of Information Commission,
The commission found in its final decision that the documents are communications between Lash and the assistant town attorney acting in their official capacities. Thus, the first two
Shew
factors are not at issue. The commission also found, however, that the plaintiffs had failed to prove that the documents “relate [d] to legal advice sought by . . . town officials and employees, or that the information in the [documеnts] was requested to be given in confidence.” We focus our review of the documents, therefore, on determining whether they satisfy the third and fourth
Shew
factors, that is, whether they establish that the communications relate to legal advice sought by the plaintiffs from the assistant town attorney, and that the communications were made in confidence.
Shew
v.
Freedom of Information Commission,
supra,
With respеct to whether the documents relate to legal advice sought by the plaintiffs, the commission conceded in its trial briefs that both documents related to pending litigation;
Lash
v.
Freedom of Information Commission,
supra,
With respect to whether thе communications were made in confidence, exhibit K, which is from the assistant town attorney to Lash, is expressly labeled: “CONFIDENTIAL Attorney-Client Communication DO NOT DISCLOSE.” The five persons who received a copy of exhibit K all were employees or officials of the town. We have stated that “[w]hether a document expressly is marked as ‘confidential’ is not disрositive, but is merely one factor a court may consider in determining confidentiality.”
Blumenthal
v.
Kimber Mfg., Inc.,
Based on our review of the documents, we conclude that the only reasonable conclusion that the commission could have arrived at is that the documents were privileged. Therefore, its determination that the documents were not privileged was incorrect as a matter of law, and the commission acted illegally, arbitrarily, unreasonably or in an abuse of its discretion. See
Stamford
v.
Freedom of Information Commission,
supra,
We next address the commission’s claim that the Appellate Court improperly reversed the judgment of the trial court upholding the commission’s decision ordering Lash to pay a civil penalty of $100. As we have stated in this opinion, the commission assessed the penalty based on its findings that the plaintiffs had violated various provisions of the act. All of those findings havе been reversed on appeal.
7
The Appellate Court
*521
properly concluded that the order that Lash pay the penalty cannot stand.
Lash
v.
Freedom of Information Commission,
supra,
The judgment of the Appellate Court is reversed only with respect to the order remanding the case to the trial court for further proceedings; the judgment of the Appellate Court is affirmed in all other respeсts.
In this opinion the other justices concurred.
Notes
We granted the commission’s petition for certification to appeal limited to the following issues: “(1) Did the Appellate Court properly conclude that the plaintiffs had sustained their burden of proof that the documents submitted for in camera review were privileged?
“(2) Did the Appellate Court properly conclude that the [commission] improperly imposed a civil penally on the plaintiffs?”
Lash
v.
Freedom of Information Commission,
Although we certified the first question, we note that the question incorrectly suggests that the Appellate Court determined whether the documents were privileged. In fact, the Appellate Court did not resolve that issue but remanded the case to the trial court to determine whether the doсuments were privileged. We disagree with the Appellate Court only to the extent that we conclude that we may resolve the question of whether the documents were privileged by conducting our own in camera review.
Whitaker did not file a brief in this appeal, and did not join the commission’s brief. Accordingly, we refer only to arguments advanced by the commission.
We agree with the Appellate Court’s observation that it is unclear whether the trial court reviewed exhibits K and L in camera in arriving at its conclusion.
Lash
v.
Freedom of Information Commission,
supra,
The commission’s argument has evolved somewhat on appeal. Before the Appellate Court, and in its brief to this court, the commission argued that a public entity must always submit extrinsic evidence to sustain its burden of showing that documents are exempt from disclosure due to attorney-client privilege. At oral argument before this court, however, the commission framed its argument more narrowly, conceding that under certain facts, no extrinsic evidence may be necessary to establish that a document is privileged, but contending that, because it was unclear on the face of these particular documents that the attоrney-client privilege applied, the plaintiffs were required in the present case to introduce extrinsic evidence to demonstrate that the documents were privileged.
Section 1-210 (b) (10) expressly exempts “communications privileged by the attorney-client relationship” from the disclosure requirements of the act.
General Statutes § 52-146r (b) provides: “In any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.”
Gеneral Statutes § 52-146r (a) (2) defines “ ‘[cjonfidential communications’ ” as “all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to lеgal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice . . . .”
We granted certification to appeal with respect to only one of the underlying bases of the commission’s assessment of the civil penalty. The remaining substantive bases for the assessment of that penalty were decided by the Appellate Court, which concluded that the commission: (1) abused its discretion in determining that the plaintiffs failed to provide prompt access to the requested records; and (2) improperly interpreted the town charter and the act in determining that Lash had a duty to inquire of the town law
*521
department as to whether it had possession of any of the documents that Whitaker had requested.
Lash
v.
Freedom of Information Commission,
supra,