Giuliano v. Freedom of Information Commission ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
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)
Moll, Alexander and Suarez, Js.
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 attor-
neys. 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 (§ 1-210 (b) (2) and (10)), and the
commission appealed to this court.
In the second case, the defendant mayor filed a complaint with the commis-
sion 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 § 1-210 (b) (10)
because they were protected by the attorney-client privilege, and it
dismissed the clerk’s appeal. The commission appealed to this court,
and, thereafter, the two appeals were consolidated. On the commission’s
appeals to this court, held:
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 § 1-210
(b) (2), as the records, invoices with redactions of the names of city
employees and the dates on which meetings occurred between the
employees and attorneys at the law firm, were created as a result of
the law firm’s investigation of the complaints brought against the mayor
and could have been used in determining whether the mayor should
have been dismissed or subjected to other personnel actions; moreover,
the information contained in the invoices was exempt from disclosure
pursuant to § 1-210 (b) (2) if such disclosure would constitute an invasion
of personal privacy, and, accordingly, the case was remanded to the
commission for further factual findings relating to whether the disclo-
sure of the redacted information would constitute an invasion of privacy,
as the commission previously did not reach the issue because it errone-
ously had determined that the records were not personnel or similar
files; furthermore, the trial court erred in concluding that the name of
the clerk and the dates of the interviews of city employees by the law
firm’s attorneys were exempt from disclosure as privileged attorney-
client communications under § 1-210 (b) (10), as the four part test set
forth in Shew v. Freedom of Information Commission (245 Conn. 149)
for determining whether communications were protected by the attor-
ney-client privilege was not met, the mere fact that a meeting had taken
place between the clerk and the attorneys did not constitute a privileged
communication, disclosure of the name of the clerk would not reveal
the substance of the communication or the specific nature of the services
provided, and the dates of interviews did not relate to legal advice or
reveal the specific nature of the services provided.
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 § 1-210 (b)
(10), communications were made between city employees and the law
firm’s attorneys and, if so, whether any such communications were
made in confidence.
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 plain-
tiff’s appeal, from which the named defendant appealed
to this court; appeal, in the second case, from the deci-
sion 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 consoli-
date 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 and named plaintiff et al. in
Docket No. AC 44295).
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 Free-
dom of Information Act (act), General Statutes § 1-200
et seq. The defendant Freedom of Information Commis-
sion (commission)1 appeals from the judgments of the
Superior Court in Docket No. AC 44284, sustaining the
appeal of the plaintiff, the Clerk of the Common Council
for the city (clerk of the common council), and in
Docket No. AC 44295, sustaining the appeal of the plain-
tiffs Sebastian Giuliano and Mary Bartolotta2 from the
commission’s decisions ordering disclosure of unre-
dacted billing and email records, respectively, after
rejecting the city’s claims that the information at issue
was either protected personnel or similar files or sub-
ject to the attorney-client privilege. In AC 44284, the
commission claims that the court erred in (1) conclud-
ing that the attorney billing records were personnel or
similar files pursuant to General Statutes § 1-210 (b)
(2); (2) making a factual finding that the disclosure of
the redacted information would constitute an invasion
of personal privacy and was thus prohibited under § 1-
210 (b) (2); and (3) concluding that certain information
in attorney billing records was exempt from disclosure
as privileged attorney-client communications pursuant
to § 1-210 (b) (10). In AC 44295, the commission claims
that the court erred in concluding that certain email
communications also were privileged attorney-client
communications protected under § 1-210 (b) (10). We
agree with the commission except with respect to the
issue of whether the invoices constitute personnel or
similar files. Therefore, in AC 44284, we affirm in part
and reverse in part the judgment of the court. In AC
44295, we reverse the judgment of the court.
I
AC 44284
We first address the appeal brought under Docket
No. AC 44284. The following facts and procedural his-
tory are relevant to our resolution of this appeal. In
December, 2017, a city employee complained that the
mayor, Daniel Drew, unlawfully had harassed her. Addi-
tionally, 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 com-
plaints. Attorney Margaret Mason of LeClairRyan
served as lead counsel on the investigation. The com-
mon council also created a special investigative sub-
committee, which was comprised of three of the com-
mon council’s twelve members: Bartolotta, Giuliano,
and Thomas Serra.
On September 7, 2018, Gerald Daley, a former mem-
ber of the common council, sent a records request to
the clerk of the common council, who was the records
custodian for the common council, in which he stated
in relevant part: ‘‘I am requesting an opportunity to
inspect or obtain copies of public records comprising
the complete billing statements and invoices, including
all non-privileged supporting documentation, submitted
by LeClairRyan . . . between January 25, 2018 and
August 13, 2018.’’ Pursuant to General Statutes § 1-214
(b) (1),3 the city gave notice to all employees whose
names appeared in the responsive documents and a
number of employees objected in writing to the disclo-
sure of their identities. In response, the clerk of the
common council sent Daley the requested records with
redactions of the names of city employees and the clerk
of the common council, as well as redactions of the
dates on which meetings occurred between the employ-
ees and attorneys at LeClairRyan.
Thereafter, Daley filed a complaint with the commis-
sion 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 com-
mon 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 § 1-210 (b) (2)4 or (10).5
At the conclusion of the hearing, the hearing officer
ordered the common council to submit to the commis-
sion all of the records at issue for an in camera review.
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 mean-
ing of General Statutes §§ 1-200 (5), 1-210 (a) and 1-212
(a). It concluded that the attorney billing records did
not constitute ‘‘ ‘personnel’ or ‘similar’ files within the
meaning of § 1-210 (b) (2).’’ It further concluded that
none of the redactions were ‘‘ ‘oral or written communi-
cations’ within the meaning of [General Statutes § 52-
146r (2)].6 . . . [T]he redacted information does not
reveal the motive of the common council in seeking
representation, litigation strategy or the specific nature
of the services provided. . . . Accordingly, it is con-
cluded that the date and place of the legal meetings
and the name of the clerk of the common council (to
the extent such name is contained in the in camera
records) are not exempt from disclosure pursuant to
§ 1-210 (b) (10).’’ (Footnote added.)
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 § 1-210 (b) (2) and
(10).
First, the court determined that the redaction of the
clerk of the common council’s name was exempt from
disclosure pursuant to § 1-210 (b) (2) because the
records were personnel or similar files and redaction
was necessary to prevent the invasion of the personal
privacy of the clerk of the common council. It explained
that the ‘‘invoices were produced solely in connection
with a personnel investigation. . . . The results of the
investigation and any actions taken therefrom are
clearly personnel actions. The investigation, its results,
and any consequent actions were meant to impact the
mayor, the city employees who complained, and city
employees generally. The documents contain informa-
tion that is pertinent to personnel decisions.’’
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 com-
plainant. Our Supreme Court has recognized the con-
cern associated with disclosing the identifying informa-
tion 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 redac-
tion 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 reason-
able person because it would facilitate retaliation and
would inhibit future participation in such investiga-
tions.7
The court further concluded that the redacted infor-
mation 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 privi-
leged, 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 harass-
ment allegations, and the attorney’s assignment to con-
duct a workplace harassment investigation.’’ This
appeal followed.
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], General Statutes
§ 1-206 (d), and complementary rules of the Uniform
Administrative Procedure Act . . . General Statutes
§ 4-166 et seq. [W]e must decide, in view of all of the
evidence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily or illegally, or abused its dis-
cretion. . . . 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, arbi-
trarily, illegally, or in abuse of its discretion. . . . Con-
clusions of law reached by the administrative agency
must stand if the court determines that they resulted
from a correct application of the law to the facts found
and could reasonably and logically follow from such
facts. . . . Although the interpretation of statutes is
ultimately a question of law . . . it is the well estab-
lished practice of this court to accord great deference to
the construction given [a] statute by the agency charged
with its enforcement. . . . Where, as in this case, the
application of the statute to the documents at issue is
fact bound, the abuse of discretion standard governs
the appeal. . . .
‘‘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.8 . . .
[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 bur-
den of proving the applicability of an exception [to
disclosure under the act] rests upon the party claiming
it.’’ (Citations omitted; footnote added; internal quota-
tion marks omitted.) Lindquist v. Freedom of Informa-
tion 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.
Section 1-210 (b) provides in relevant part: ‘‘Nothing
in the Freedom of Information Act shall be construed
to require disclosure of . . . (2) [p]ersonnel or medical
files and similar files the disclosure of which would
constitute an invasion of personal privacy . . . .’’
‘‘When [a] claim for exemption involves [§ 1-210 (b)
(2)],9 the plaintiffs must meet a twofold burden of proof
. . . . First, they must establish that the files in ques-
tion are within the categories of files protected by the
exemption, that is, personnel, medical or similar files.
Second, they must show that disclosure of the records
would constitute an invasion of personal privacy. . . .
Determination as to whether either prong has been
satisfied is, in the first instance, a question of fact for
the [commission], to be determined pursuant to the
appropriate legal standards.’’ (Citation omitted; foot-
note added; internal quotation marks omitted.) Con-
necticut Alcohol & Drug Abuse Commission v. Free-
dom of Information Commission, 233 Conn. 28, 38,
657 A.2d 630 (1995).
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 deci-
sions regarding the individual involved. If a document
or file contains material, therefore, that under ordinary
circumstances would be pertinent to traditional person-
nel decisions, it is ‘similar’ to a personnel file. Thus, a
file containing information that would, under ordinary
circumstances, be used in deciding whether an individ-
ual 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 [§ 1-210 (b) (2)].’’ Id., 41.
In Connecticut Alcohol & Drug Abuse Commission,
the records at issue pertained to an investigation regard-
ing 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 ‘‘ ‘simi-
lar’ ’’ file and explained that, although ‘‘reports of inci-
dents 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 func-
tionally similar to information contained in the individu-
al’s personnel files. [Section 1-210 (b) (2)] requires a
case-by-case analysis to determine whether a particular
file is a ‘similar file.’ ’’ Id., 42.
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 alterca-
tion between the plaintiff, who was a guidance coun-
selor, 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 wit-
nesses 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 arrange-
ment.’’ (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 this way, the file is ‘similar’ to a personnel
file.’’ Id., 160.
In Superintendent of Police v. Freedom of Informa-
tion 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 person-
nel file’’ and, therefore, the information therein was not
exempt from disclosure pursuant to § 1-210 (b) (2).
In that case, a request was sent to the plaintiffs, the
superintendent of police of the city of Bridgeport and
the Bridgeport Police Department, asking for ‘‘a list of
all those residents of Bridgeport who possessed munici-
pal permits to carry pistols or revolvers.’’ Id., 623. Spe-
cifically, the requester ‘‘desired to know the individual’s
name, birthdate, address, telephone number, occupa-
tion, sex, date of issuance of the permit and what weap-
ons were registered to the individual.’’ Id., 624. Our
Supreme Court, in concluding that the pistol permits
were not ‘‘ ‘similar’ ’’ files, reasoned that, ‘‘[i]n common
parlance, a permit to carry a pistol or revolver is not
‘similar’ to a medical or personnel file. Unlike a person-
nel or medical file, a permit to carry a pistol or revolver
does not contain detailed information with a potential
for disclosure of the intimate details of one’s personal
life or capabilities. To conclude that a permit to carry
a pistol or revolver is ‘similar’ to a medical or personnel
file and therefore exempt from disclosure would be a
broad interpretation of § [1-210 (b) (2)] that would
stretch the ordinary meaning of ‘similar’ to the breaking
point. Such an interpretation would be inconsistent
with the general principle that exceptions to disclosure
must be narrowly construed.’’ (Footnotes omitted.)
Id., 628.
The question before this court is whether the commis-
sion 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 § 1-210 (b) (2). The records
at issue are invoices with redactions of the names of city
employees and the dates of the meetings that occurred
between the employees and the attorneys at LeClair-
Ryan. The invoices were created as a result of an investi-
gation conducted by LeClairRyan after allegations of
harassment and improper solicitation of campaign con-
tributions were brought against the mayor. The invoices
contained the names of city employees with whom
LeClairRyan had spoken in the course of its investiga-
tion, as well as the dates on which the interviews took
place. The information obtained in the course of the
investigation, therefore, could be used to inform any
necessary remedial action and in deciding whether the
mayor should be ‘‘dismissed or subject to other such
traditional personnel actions . . . .’’ Connecticut Alco-
hol & Drug Abuse Commission v. Freedom of Informa-
tion Commission, supra, 233 Conn. 41. The invoices,
therefore, are ‘‘ ‘similar in nature’ ’’ to personnel files
and constitute ‘‘ ‘similar’ ’’ files as that term is used in
§ 1-210 (b) (2). Id., 40, 42; see also Rocque v. Freedom
of Information Commission, 255 Conn. 651, 661–62,
774 A.2d 957 (2001) (‘‘written complaint of sexual
harassment made by an employee . . . the complain-
ant’s detailed statement to investigating officer, and
notes from interviews of many coworkers taken during
the course of the department’s investigation of that
complaint’’ constituted personnel or similar files). Con-
sequently, the information contained in the invoices,
including the name of the clerk of the common council,
is exempt from disclosure pursuant to § 1-210 (b) (2)
if disclosure of such information would constitute an
invasion of personal privacy. See Connecticut Alcohol &
Drug Abuse Commission v. Freedom of Information
Commission, supra, 38.
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 inva-
sion of personal privacy under § 1-210 (b) (2). Specifi-
cally, the commission contends that, ‘‘[b]ecause the
[commission] found that the billing records did not
constitute personnel or similar files . . . the [commis-
sion] did not reach a finding as to whether disclosure
would constitute an invasion of personal privacy.
Because the Superior Court concluded that the [com-
mission’s] finding was clearly erroneous, the court
should have remanded the matter to the [commission]
to consider whether the disclosure would result in an
invasion of personal privacy.’’ In light of our conclusion
that the court correctly determined that the records are
personnel or similar files, we agree with the commission
that the case should be remanded to the commission
for factual findings in regard to whether disclosure of
the redacted information would constitute an invasion
of personal privacy. Because the commission deter-
mined that the records did not constitute personnel or
similar files within the meaning of § 1-210 (b) (2), it did
not reach the issue of whether disclosure of the invoices
would constitute an invasion of personal privacy. ‘‘Such
a determination is for the [commission] in the first
instance.’’ Connecticut Alcohol & Drug Abuse Commis-
sion v. Freedom of Information Commission, supra,
233 Conn. 43; see also Shew v. Freedom of Information
Commission, 245 Conn. 149, 160–61, 714 A.2d 664(1998). We are obligated, therefore, to direct the remand
of the matter to the commission for a determination as
to whether disclosure of the name of the clerk of the
common council and the dates contained in the invoices
would constitute an invasion of privacy pursuant to § 1-
210 (b) (2).
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.
Section 1-210 (b) provides in relevant part: ‘‘Nothing
in the Freedom of Information Act shall be construed
to require disclosure of . . . (10) . . . communica-
tions privileged by the attorney-client relationship
. . . .’’ ‘‘[T]he essential elements of the attorney-client
privilege under both statutory and common law are
identical.’’ Lash v. Freedom of Information Commis-
sion, 300 Conn. 511, 516, 14 A.3d 998 (2011). 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 communi-
cations must be made to the attorney by current employ-
ees 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 Informa-
tion Commission, supra, 245 Conn. 159. ‘‘[T]he party
claiming an exemption from the disclosure require-
ments of the act bears the burden of establishing the
applicability of the exemption.’’ Lash v. Freedom of
Information Commission, supra, 517. The privilege
must be established ‘‘for each document separately con-
sidered’’ and must be ‘‘narrowly applied and strictly
construed.’’ Harrington v. Freedom of Information
Commission, 323 Conn. 1, 12, 144 A.3d 405 (2016).
‘‘[T]here is a general agreement that attorney billing
statements and time records are protected by the attor-
ney-client privilege only to the extent that they reveal
litigation strategy and/or the nature of services per-
formed . . . . Thus, statements and records that sim-
ply 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-XX-XXXXXXX-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 seek-
ing 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 dis-
trict 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 com-
pelling disclosure of number of billing hours and general
subject matter designations on billing invoices and stat-
ing 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, there-
fore, would not reveal the specific nature of the services
provided.
Similarly, the dates of interviews are not privileged
attorney-client communications because they do not
relate to legal advice nor do they reveal the specific
nature of the services provided. The clerk of the com-
mon council failed to present evidence that the disclo-
sure of only the date that an interview took place would
reveal the identity of individuals who participated in
the investigation. The dates of the interviews, therefore,
do not reveal the specific nature of services provided
and are not exempt from disclosure pursuant to the
attorney-client privilege.
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 § 1-210 (b) (2), we
reverse the judgment of the court with direction to
remand the case to the commission for further proceed-
ings to determine whether disclosure of the name of
the clerk of the common council and the dates of the
interviews would constitute an invasion of personal
privacy pursuant to § 1-210 (b) (2). We reverse the
judgment of the court with respect to its determination
that the name of the clerk of the common council, to
the extent it appears in the invoices, and the dates of
interviews are exempt from disclosure pursuant to § 1-
210 (b) (10).
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 investiga-
tion 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 commis-
sion, 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 disclo-
sure pursuant to § 1-210 (b) (2) or (10). At the conclu-
sion of the hearing, the hearing officer ordered the
common council to submit to the commission all of the
records at issue for an in camera review.
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 §§ 1-
200 (5), 1-210 (a), and 1-212 (a). It also determined that
the common council and LeClairRyan entered into an
attorney-client relationship. With regard to a number
of the records at issue, however, the commission deter-
mined that no legal advice was being sought by the
client or being provided by the attorney, and, therefore,
those records were not exempt from disclosure pursu-
ant to the attorney-client privilege.
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 para-
graph 48 of the commission’s final decision, were pro-
tected by the attorney-client privilege and, therefore,
were exempt from disclosure pursuant to § 1-210 (b)
(10).
The court identified the four part test used to deter-
mine 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 Infor-
mation 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 investiga-
tion 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 investiga-
tion, (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 inter-
viewing the employees as part of the attorney’s investi-
gation.
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 concern-
ing the investigation by revealing her choices of infor-
mation 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 inter-
viewed, (iv) gives indications of what information cer-
tain employees have relevant to the investigation and
the employees’ attitudes, and (v) reveals the thorough-
ness 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.
On appeal, the commission contends that the court
erred in concluding that certain email communications
were exempt from disclosure as attorney-client privi-
leged communications pursuant to § 1-210 (b) (10). It
also contends that, because the commission did not
make factual findings with respect to each of the factors
of the test set forth in Shew v. Freedom of Information
Commission, supra, 245 Conn. 159, it was improper for
the court to make such findings and it should have
remanded the case to the commission for consideration
of those factors.
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 gov-
erned by a provision of the [act] . . . § 1-206 (d), and
complementary rules of the Uniform Administrative
Procedure Act . . . § 4-166 et seq. [W]e must decide,
in view of all of the evidence, whether the agency,
in issuing its order, acted unreasonably, arbitrarily or
illegally, or abused its discretion.’’ (Internal quotation
marks omitted.) Lindquist v. Freedom of Information
Commission, supra, 203 Conn. App. 525.
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 communi-
cations must be made to the attorney by current employ-
ees 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 Informa-
tion Commission, supra, 245 Conn. 159.
In considering the first prong of the test, the court
properly determined that, consistent with the commis-
sion’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, there-
fore, were acting in a professional capacity when com-
municating with city employees.
With respect to the third prong, whether the commu-
nications relate to the legal advice sought by the com-
mon 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 attor-
ney 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 cli-
ent be consulting an attorney for professional advice,
and [a]ny type of legal advice will qualify . . . .’’ (Cita-
tions 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 commu-
nications at issue did not expressly ask any legal ques-
tions; however, the information conveyed in the com-
munications related to the investigation by LeClairRyan
into the conduct of and allegations against the mayor
and was needed to supply a basis for legal advice con-
cerning any future steps taken by the common council.
See id., 13; Shew v. Freedom of Information Commis-
sion, supra, 245 Conn. 160.
We agree, however, with the commission’s con-
tention that it did not make a determination concerning
two of the Shew factors, namely, whether the communi-
cations 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 com-
mission 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. Conse-
quently, a remand for further factual findings by the
commission with regard to these questions is neces-
sary.’’).
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 § 1-210
(b) (10), the communications at issue were made in
confidence between employees of the city and the
LeClairRyan attorneys.
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 § 1-210 (b) (10)
and with respect to the determination that disclosure
of the redacted information would constitute an inva-
sion of personal privacy pursuant to § 1-210 (b) (2) and
the case is remanded with direction to remand the case
to the commission for further proceedings consistent
with this opinion; the judgment is affirmed in all other
respects.
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.
1
In each case, the individuals who requested the unredacted records from
the city, namely, Gerald Daley in Docket No. AC 44284 and Daniel Drew in
Docket No. AC 44295, also were named as defendants.
2
Linda Reed was also a plaintiff in AC 44284. The trial court dismissed
her appeal and she has not appealed from that judgment.
3
General Statutes § 1-214 (b) (1) provides in relevant part: ‘‘Whenever a
public agency receives a request to inspect or copy records contained in
any of its employees’ personnel or medical files and similar files, and the
agency reasonably believes that the disclosure of such records would legally
constitute an invasion of privacy, the agency shall immediately notify in
writing (A) each employee concerned . . . and (B) the collective bargaining
representative, if any, of each employee concerned.’’
4
General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in the
Freedom of Information Act shall be construed to require disclosure of . . .
(2) Personnel or medical files and similar files the disclosure of which would
constitute an invasion of personal privacy . . . .’’
5
General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in the
Freedom of Information Act shall be construed to require disclosure of . . .
(10) . . . communications privileged by the attorney-client relationship
. . . .’’
6
General Statutes § 52-146r (2) provides: ‘‘ ‘Confidential communications’
means 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 legal 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 . . . .’’
7
See Perkins v. Freedom of Information Commission, 228 Conn. 158,
175, 635 A.2d 783 (1993).
8
General Statutes § 1-210 (a) provides in relevant part: ‘‘Except as other-
wise provided by any federal law or state statute, all records maintained
or kept on file by any public agency, whether or not such records are
required by any law or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect such records promptly
during regular office or business hours, (2) copy such records in accordance
with subsection (g) of section 1-212, or (3) receive a copy of such records
in accordance with section 1-212. . . .’’
9
Section 1-210 previously was codified at General Statutes § 1-19.
10
We note that, although the commission also contends that the court
erred in concluding that time and location information was exempt from
disclosure, the information redacted from the invoices consisted only of
names and dates.
11
Giuliano and Bartolotta appealed in their capacity as members of the
common council.
12
In its decision, the court determined that Reed, who was not a member
of the common council, did not have standing to pursue an appeal and
dismissed her claim. Reed has not appealed from the court’s dismissal of
her claim.