As a self-described FOIA nerd, I have written in these pages about issues pertaining to the effect of the Freedom of Information Act [“FOIA”] on the attorney-client privilege (and vice versa). In a plethora of recent decisions, the Freedom of Information Commission [“FOIC”] has provided further guidance on these issues.
Briefly, the FOIA exempts from its general disclosure mandate those documents protected by the attorney-client privilege. As we have noted before, not every communication from your lawyers is protected by the attorney-client privilege and exempt from disclosure under the FOIA. Generally, in order to be protected, the communication between a public official or employee and an attorney must be confidential, made in the course of the professional relationship that exists between the attorney and his/her public agency client, and relate to legal advice sought by the agency from the attorney. Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga (4th Edition, 2013), at pp. 36, 55.
So what about the bills that we receive from our attorney? In Carlson v. Executive Director, East Hartford Housing Authority, #FIC 2014-240 (March 25, 2015), the FOIC held that portions of an attorneys’ bill that describe in any detail the nature of work being performed may be exempt from disclosure. In other words, while a general statement of the purpose of the work performed may not be exempt from such disclosure, bill entries that reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching a specific area of the law, may be exempt. Everything else, however, is likely subject to disclosure. Specifically, information concerning the date of services rendered, the identity of the specific attorney providing the services, hours of service and hourly rate, and amount billed are not viewed to be matters protected by the attorney–client privilege.
So what if we want to communicate amongst ourselves about an employee without having to invite him/her into executive session or give him/her the opportunity to demand that we discuss the matter in public? In Reid v. Fire Commission, Town of Fairfield, #FIC 2014-226 (March 25, 2015), the FOIC held that while a discussion regarding a personnel matter by itself will trigger certain rights for the employee being discussed, agencies can avoid this trap where they are meeting in executive session to consider a written attorney-client privileged communication about the employee or related contractual matter. Of course, it is important to limit any discussion during the executive session to the communication from your agency’s attorney. Thus, a discussion about an employee’s performance separate and apart from a discussion of the legal opinion would be problematic. Reimondo v. Town of East Hampton, #FIC 2010-444 (May 11, 2011). A discussion limited to the legal opinion however, would be permissible. Bivona v. Chairman, Board of Education, Brookfield Public Schools, #FIC 2014-253 (February 4, 2015); Dostaler v. Chairperson, Town Council, Town of East Hampton, #FIC 2008-041 (July 9, 2008).
So how much description do we have to put on the agenda (or motion) when we go into executive session to discuss a written attorney-client privileged communication? In Lowthert v. Chairman, Board of Education, Wilton Public Schools, #FIC 2014-171 (March 11, 2015) the FOIC appeared to hold that unlike executive sessions for pending litigation and personnel matters — where the public body has to provide at least some description of the nature of the litigation or personnel matter — simply indicating that the purpose of the executive session was to discuss an attorney-client privileged communication would be sufficient, especially where any further description could reveal the substance of the confidential communication.
So how much information can we disclosure from the attorney-client communication without waiving the privilege? Be very afraid, for in DeLucca v. Superintendent of Schools, Berlin Public Schools, #FIC 2014-183 (March 25, 2015), the FOIC held that if an agency discloses the substance or “gist” of the legal advice or privileged communication, it may have waived the privilege as to the entire communication.
A Final Word. While the attorney-client privilege is still alive and kicking in the eyes of the FOIC, and while you need not broadcast to the world the substance of your attorney’s work for your agency, you still need to act prudently to ensure compliance with the FOIA’s public meetings and public records requirements and to avoid an inadvertent disclosure of the contents of any privileged communications.
These and other issues are discussed in more detail in Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga, Esq. For a copy of this book, please click here.