Our employer clients that are public entities subject to FOIA will find this piece by Attorney Sommaruga particularly useful.  Our private sector clients, not subject to FOIA, may nonetheless find the discussion of attorney-client privilege illuminating.

Clients sometimes include me on communications merely to protect themselves from Connecticut’s Freedom of Information Act (FOIA), believing that anything sent to me is automatically covered by the attorney-client privilege.  In addition, clients sometimes think that merely because a record is maintained by my office (as opposed to the client’s), it is not subject to disclosure.  However, not every communication to/from your lawyers is exempt from disclosure under the FOIA, and merely avoiding possession of a record does not mean that it is not covered by the FOIA. 

1. First, what does the attorney-client privilege cover? In order to be protected, a communication between board/commission members (or public agency employees) and their attorneys must be made in confidence and in the course of the professional relationship that exists between the attorney and the public agency and must relate to legal advice sought by the agency from its attorney.  The attorney-client privilege protects both a) the confidential giving of professional advice by your attorney and b) the giving of information to the attorney to enable the attorney to give sound advice.

2. So, does that mean that anything that we send to our attorney is covered? Nope. Connecticut’s Freedom of Information Commission (FOIC) and the courts recently reminded us of the limits of the privilege.  In Town of Avon v. Sastre, 224 Conn. App. 155 (2024), a town employee met with the town manager to discuss incidents involving the police chief.  Following that meeting, the town manager contacted the town attorney.  After the attorney inquired if there was any documentation related to the alleged incidents, the town manager contacted the employee, at which time he learned that the employee had created a log detailing the underlying incidents. The employee provided the log to the town manager, who made a copy of the log, provided a copy to the town attorney, and returned the log to the employee.

A request was made under the FOIA for records related to the accusations against the chief.  The town did not provide a copy of the log.  Before both the FOIC and the courts, the town asserted that the log was exempt from disclosure due to the attorney-client privilege, and that the log was not even a record under the FOIA.  Spoiler alert: The FOIC and the courts (including the Appellate Court) did not agree with the town’s position.

3. So, can we shield records from disclosure by simply sending the document to our lawyer? Nope.  The FOIC and the courts rejected the town’s argument that since it did not retain the record, it was not a public record. The definition of public record (“any recorded data or information relating to the conduct of the public's business ... received ... by a public agency”) includes a document that has come into a public agency’s possession. When the town manager took possession of the log (which pertained to the public’s business), the town “received” the log for purposes of the FOIA (retention be darned).  In addition to the fact that a town attorney is an agent of the town, the courts reiterated that a public agency cannot circumvent its FOIA obligations by simply delivering records to its attorney.

4. What about the attorney client privilege? The courts and the FOIC rejected the town’s argument that the log was exempt from disclosure pursuant to the attorney-client privilege.   The courts determined that the FOIC properly found that a) the log, which existed before the town sought legal advice, contains personal observations of the employee relating to the chief’s conduct, b) the employee created the log for his own personal use, c) the log was not created for the purpose of seeking legal advice or with the intent to communicate its contents to an attorney, d) the employee met with the town manager, who is not an attorney, to discuss the employee's concerns about the chief’s conduct and to seek guidance on how to deal with the chief, and e) the log does not constitute a record of communication between a client and an attorney, as there was no evidence that the employee who created the log ever spoke with the town attorney.  The log did not become a privileged document simply because the town manager provided the log to the town attorney when he sought legal advice about how the town should proceed with respect to the chief.

Final Thoughts.  While a preexisting document does not become privileged merely because it is transferred/routed through an attorney, it could become privileged if it were somehow transformed for the purpose of seeking legal advice and communicated (or intended to be communicated) to an attorney.  If the employee had created a typed compilation and/or summary of the log for the purpose of securing counsel, and then sent it the attorney seeking advice, the communication could have been exempt from disclosure. However, without more, just sending a document to a lawyer does not make it exempt it from disclosure.

Please note: this post is adapted from an article written by the author for the June 2024 edition of the CABE Journal

[View source.]