Clerk of the Common Council v. Freedom of Info. Comm'n

215 Conn.App. 404

283 A.3d 1

CLERK OF the COMMON COUNCIL

v.FREEDOM OF INFORMATION COMMISSION et al.

Sebastian Giuliano et al.

v.Freedom of Information Commission et al.

AC 44284, (AC 44295)

Appellate Court of Connecticut.

Argued November 9, 2021

Officially released September 27, 2022

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, Hartford, for the appellees (plaintiff in Docket No. AC 44284 and named plaintiff et al. in Docket No. AC 44295).

Moll, Alexander and Suarez, Js.

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 Freedom of Information Act (act), General Statutes § 1-200 et seq. The defendant Freedom of Information Commission (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 plaintiffs Sebastian Giuliano and Mary Bartolotta² from the commission's decisions ordering disclosure of unredacted billing and email records, respectively, after rejecting the city's claims that the information at issue was either protected personnel or similar files or subject to the attorney-client privilege. In AC 44284, the commission claims that the court erred in (1) concluding 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.

IAC 44284

We first address the appeal brought under Docket No. AC 44284. The following facts and procedural history are relevant to our resolution of this appeal. In December, 2017, a city employee complained that the mayor, Daniel Drew, unlawfully had harassed her. Additionally, 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 complaints. Attorney Margaret Mason of LeClairRyan served as lead counsel on the investigation. The common council also created a special investigative subcommittee, which was comprised of three of the common council's twelve members: Bartolotta, Giuliano, and Thomas Serra.

On September 7, 2018, Gerald Daley, a former member 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 disclosure 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 employees and attorneys at LeClairRyan.

Thereafter, Daley filed a complaint with the commission 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 common 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 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 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 meaning 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 communications’ 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 concluded 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 information 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 complainant. Our Supreme Court has recognized the concern associated with disclosing the identifying information 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 redaction 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 reasonable person because it would facilitate retaliation and would inhibit future participation in such investigations.⁷

The court further concluded that the redacted information 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 privileged, 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 harassment allegations, and the attorney's assignment to conduct 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 discretion. ... Even as to questions of law, [t]he court's ultimate duty...