What happens when your agency’s lawyer sends out a confidential letter that is somehow leaked? A relatively recent decision by the Freedom of Information Commission [“FOIC”] appears to indicate that all is not lost, as “inadvertent” or “unexplainable” releases of otherwise privileged communication from your attorney will not destroy the attorney-client privilege.
The FOIC’s decision in Kadri v. Chairman, Board of Education, Groton Public Schools,#FIC 2012-642 (September 25, 2013) took place in the backdrop of what your humble author believes was the first termination hearing for a Superintendent of Schools in Connecticut that was actually litigated to a final decision. As an investigation into the Superintendent’s interactions with school employees was concluding, the embattled Superintendent made a request under the Freedom of Information Act [“FOIA”] for numerous Board of Education records. What was at the heart of the FOIC complaint was a request for a copy of an e-mail written by the Board’s attorney. The Board of Education’s Chairperson had previously requested that the Board’s attorney provide her with a legal opinion concerning the risks involved in revealing the report from the investigation into the Superintendent’s conduct before it was finalized. The Board’s attorney provided via e-mail his legal advice to the Chairperson, who then shared the e-mail with the other members of the Board. In an event dripping with irony, this e-mail concerning the risks of disclosure was itself mysteriously leaked to a newspaper reporter. The reporter then wrote an article, which quoted nearly half of the confidential e-mail verbatim, while paraphrasing an additional sentence. It was the Superintendent’s contention that in light of this substantial disclosure, the e-mail, including the remaining, undisclosed portions, was no longer protected by the attorney-client privilege. The Board asserted that the release of the privileged e-mail was inadvertent, and that it had taken precautions to prevent disclosure, thus preserving the privilege, while the (now former) Superintendent asserted that the release was intentional.
The FOIC found that the release was not intentional but rather was “unexplainable.” The Superintendent asserted that a Board member intentionally disclosed the communication in light of the fact that the Board’s legal bills revealed that in the days following the article’s publication, the Board’s attorney began to research such issues as “remedies for leak”; “procedures re: removal of a Board member and code of ethics”; and “the effect of the attorney client privilege on one member of the board releasing to a third party confidential protected communication without permission from entire board.” The FOIC, however, found that while the attorney’s entries could indicate that a Board member leaked the e-mail to the press, these entries could just as easily indicate that the attorney was researching these issues in case such an event occurred. The FOIC noted that there was no evidence in the record from which the FOIC could conclusively determine that it was a Board member who leaked the confidential communication to the press, let alone that such action was done intentionally.
In recognizing the precautions taken by the Board, the FOIC noted that the Board Chairperson, as per her usual policy of safeguarding privileged communications, labeled the e-mail as privileged and reiterated to the Board members that the document at issue was privileged and was not to be shared outside of the Board. Furthermore, the Board had previously discussed the importance of handling privileged communications. In addition, there was just one “unexplainable” release of the record at issue. The FOIC also found the measures taken by the Board to rectify any inadvertent disclosure to be persuasive. Indeed, upon learning that the e-mail had been leaked to the press, the Board Chairperson immediately contacted the Board members and the Board’s attorney to discuss the disclosure of the e-mail and determine what the Board’s next steps should be. The Chairperson also contacted the press to determine how it obtained a copy of the e-mail, and was informed that the document was anonymously dropped off. The Board convened in public to discuss the disclosure, at which time the individual Board members expressed their outrage about the disclosure, and reviewed the importance of safeguarding privileged documents. Finally, the Board subsequently convened a public FOIA training session presented by the FOIC’s Freedom of Information Officer, at which time the attorney-client privilege was discussed. In this context, the FOIC concluded that the unexplained — and unauthorized — disclosure of the privileged e-mail did not constitute a waiver of the attorney-client privilege, and the Board did not violate the FOIA by refusing to disclose the e-mail.
Lessons learned for Board of Education members and employees (besides the Watergate-like facts)? It goes without saying that the attorney-client privilege is essential for a school district’s attorney’s ability to robustly defend and represent the district’s interests, and thus the privilege should be zealously safeguarded. Board members who intentionally release attorney-client privileged communications can cause great harm, expense and potential liability for the school district, and, frankly, such persons should not have sought to serve in public office in the first place. That being said, school boards, and public agencies in general, can take solace in that if they take reasonable steps to protect the privilege, and take prompt measures to rectify any inadvertent release, they may be well-positioned to protect the privileged nature of such communications. As with most things that fall within the ambit of the FOIA, an ounce of prevention, contrition, and prompt efforts to rectify an error will serve an agency well.