Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
When I signed up to be an administrator, I never realized what expansive rights nosy people have under the Freedom of Information Act. I understand that the public has the right to know certain things, but it seems like these busy bodies can dissect everything that I do and say. Just last week, for example, I wrote an email to the director of human resources asking what I should do about a rumor I had heard that one of my teachers has a gambling problem. Wouldn’t you know it?! The reporter for the local newspaper heard the same rumor, asked for any related emails, and she is now asking for my comment on what I plan to do about this teacher and his gambling problem.
This FOIA stuff is getting really old. From reading Legal Mailbag, I know that you are clever. Just between us, what do you suggest?
Looking for Advice on the QT
It is interesting that you are asking a lawyer for advice on the QT. Communications between lawyers and their clients are one of the few exemptions from disclosure applicable to public records under the FOIA. There are specific limitations on this exemption, however, that bear examination.
Before we do that, I must ask you a simple question – do you have a telephone? If you do, you are well-advised to use it when you have questions of your supervisor on topics that can be controversial. The Freedom of Information Act governs the disclosure of public records, i.e. “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” If you don’t create records (because you are talking on the telephone or in person, not typing or writing), you don’t have to worry about the FOIA. Also, you can take personal notes related to your job and maintain them as confidential as long as they are for you only and are not shared with others.
The FOIA also exempts from disclosure “communications privileged by the attorney-client relationship,” and thus it is important to have a good understanding of this exemption. This exemption applies when a public official shares information with the lawyer for the public agency in confidence for the purpose of obtaining legal advice, and it also applies to the response back from the lawyer, again provided in confidence. To qualify for this exemption, the communication must meet both conditions.
First, the communication must be confidential. If the information is shared with third parties outside of the attorney-client relationship, the exemption is lost. For example, you and your supervisor can share with the school district lawyer what you have heard about the teacher with the gambling problem and seek advice as to next steps. But if your lawyer then writes to the lawyer for the teachers’ union about this issue and copies you on that email, the email is not solely between lawyer and client, and thus it may not be considered an “attorney-client communication” that is exempt from disclosure. Closer to home, if you share the communication you receive from the district’s lawyer with third parties (like the PTO President), you will have destroyed the exemption and the communication will be subject to disclosure.
Second, the communication must be for the purpose of requesting and receiving legal advice. Just last year, the Connecticut Supreme Court elaborated on this requirement in Harrington v. Freedom of Information Commission, 323 Conn. 1 (2016), as follows:
Nonetheless, it is not enough for the party invoking the privilege to show that a communication to legal counsel relayed information that “might become relevant to the future rendering of legal advice. Instead, the communication must also either explicitly or implicitly seek specific legal advice about that factual information.” (Citations omitted).
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“Lest a non-legal element become the tail that wags the dog, a clear and significant nexus between attorney-client communications and legal advice or assistance is rightly expected. In classifying the character of the communication, the crucial inquiry is whether the intent of the client, in deciding to approach the lawyer, is to obtain legal counsel, even if other dimensions of a matter are addressed as well.” (Citations omitted).
In sum, some records may be exempt from disclosure because they are confidential attorney-client communications. But you can’t just include the district’s lawyer on an email and automatically presume that the email will now be exempt. And while you sought free legal advice from Legal Mailbag, this column is not written just to you, and it is therefore a public record as well.