MICHAEL C. HARRINGTON v. FREEDOM OF INFORMATION COMMISSION et al., SC 19586

Judicial District of New Britain

 Freedom of Information; Whether Documents Exempt From Disclosure Pursuant to General Statutes § 1-210 (b) (1) Attorney-Client Privilege.  The plaintiff requested documents from the Materials Innovation and Recycling Authority (MIRA), f/k/a the Connecticut Resources Recovery Authority, including communications between attorneys Thomas Ritter and Peter Boucher and MIRA’s staff and board of directors.  MIRA did not respond to the request, and the plaintiff filed a complaint with the Freedom of Information Commission (FOIC).  The FOIC ordered MIRA to produce the documents, but MIRA continued to withhold some of the documents on the ground that they were exempt from disclosure pursuant to General Statutes § 1-210 (b) (10) of the Freedom of Information Act (FOIA), which provides that nothing in the FOIA shall be construed to require disclosure of “communications privileged by the attorney-client relationship.”  The withheld documents were e-mails sent to MIRA by Ritter and Boucher.  An FOIC hearing officer found that the e-mails were exempt from disclosure, and the FOIC approved the hearing officer's decision.  The plaintiff appealed to the trial court, which upheld the FOIC’s decision and dismissed the appeal.  The trial court found that although the e-mails contained a mix of legal and business advice, they were "inextricably linked" to the giving of legal advice and were not subject to separation or redaction.  The court also rejected the plaintiff's argument that some of the documents were not privileged because they were shared with law firm members who were not attorneys.  It found that the confidentiality of the documents shared with non-attorney firm members was not lost because those firm members were agents of the attorney and were assisting the attorney in providing advice to MIRA.  Finally, the court rejected the plaintiff's claim that the FOIC wrongly deferred to the decision of its hearing officer, ruling that the FOIC was not obligated to review every document and was not restrained from concluding that the hearing officer acted in good faith and rendered a fair and adequate decision.  The plaintiff appeals and argues that the trial court’s judgment should be reversed because the FOIC abdicated its statutory duty of enforcing the FOIA by affording undue deference to the hearing officer’s findings.  The plaintiff also claims that the trial court wrongly determined that the e-mails were subject to the § 1-210 (b) (10) attorney-client privilege.  He argues that Ritter and Boucher did not always act in their capacities as attorneys in working for MIRA, that they sometimes provided MIRA general business advice or lobbying services, and that the communications relating to business advice and lobbying were not so “inextricably linked” to privileged legal communications that they should not be ordered disclosed.