The town of Avon cannot claim attorney-client privilege to prevent a log created by a managerial employee that documented incidents involving the chief of police from being disclosed under the Freedom of Information Act (FOIA) according to a recent ruling from the state appellate court. The court ruled in favor of the Freedom of Information Commission’s (FOIC), finding that attorney-client privilege did not apply and that documents created by public employees can be defined as public records.
In November 2019, a managerial-level employee with the town of Avon met with town manager Brandon Robertson to discuss a number of work-related incidents and events he had witnessed involving Mark Rinaldo, the town’s chief of police. Robertson subsequently contacted the town’s legal counsel for advice on the incidents the employee, “B” in the court documents, described. The town counsel told Robertson to inquire of B whether he had any documentation or personal notes describing the incidents.
Robertson did so and B, who had been detailing incidents between June 20, 2018 and October 25, 2019, provided him with a log, which Robertson copied and gave to the town attorney. On November 11, 2019, Rinaldo was placed on administrative leave pending an investigation and then retired, following negotiation of a severance agreement with the town.
In February 2020, Joseph Sastre renewed a FOIA request with the town, seeking “any and all records relating to the “accusations” concerning the Town of Avon’s Chief of Police, Mike Rinaldo.” On February 11, the town acknowledged the request, stating that they had provided all non-exempt documents in response to Sastre’s original request. Two weeks later, on February 27, the town responded again, saying they would finalize their response to the request within the next week.
Sastre was provided with the November 11, 2019 memorandum noting Rinaldo was being placed on leave and with the severance agreement, but not a copy of the log kept by B.
On March 13, Sastre appealed to the FOIC, claiming the town had violated FOIA by not providing him with all requested records.
In its ruling on the complaint, the FOIC noted that neither of the documents provided to Sastre describe the reason Rinaldo was placed on leave. It also found that the log was the only additional document the town maintained which was not provided. During the appeal, the commission performed an in camera inspection.
Robertson and the town argued that the log did not have to be disclosed through FOIA because of an exemption to the law that permits an agency to withhold records of “communications privileged by the attorney-client relationship.”
Prior Connecticut court rulings have established three ways to establish that privilege: by showing that the document is a record of a communication between a client and an attorney, by showing that the document was created with the intent to communicate to an attorney and that communication occurred, and by showing a preexisting document was transformed into a communication for the purpose of seeking legal advice. The FOIC found the log met none of these categories. While the log was preexisting, it was created for personal use, not for seeking legal advice, and was not later recreated for the purpose of obtaining legal advice. Additionally, the town manager’s possession of it did not qualify as attorney-client privilege. The FOIC ordered the town to provide Sastre with the document.
Robertson and Avon appealed the ruling to superior court, which issued a memorandum of decision agreeing with the FOIC’s decision that the commission is a public record subject to disclosure and dismissing the appeal.
Robertson and the town then appealed again. Before the appellate court, they argued that the lower court improperly dismissed their appeal from the commission’s decision because the log is not a public record. The court did not find that argument persuasive and found it did relate to the public’s business as it detailed the concerns of a town employee over work-related conduct of a chief of police, another town employee.
“Documents do not have to be created by a public agency to relate to the conduct of the public’s business.” The court wrote in its opinion.
The court also did not find the plaintiffs’ argument that the log was protected by attorney-client privilege persuasive. It concluded following an in camera review of the log that the FOIC’s findings that the log contained personal observations related to Rinaldo’s conduct, was created by an employee for personal use, was not created for the purpose of seeking legal advice, that the employee met with Robertson to discuss concerns about Rinaldo’s conduct and to seek guidance, and that the log is not a record of communication between a client and attorney because there is no evidence the employee who created it spoke with the town attorney were correct.
“In summary, we conclude that the log constitutes a public record subject to disclosure under the [FOIA] act and that the commission’s determination that it is not exempt from disclosure under the act pursuant to the attorney-client privilege resulted from a correct application of the law to the facts found.” the court wrote.
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