The University of Connecticut (UConn) violated the Freedom of Information Act (FOIA) by improperly withholding records under the attorney-client privilege exemption and failing to turn over records that were created by requester Paul Manocchio, according to a recent decision from the Freedom of Information Commission (FOIC).

On May 3, 2024, Manocchio submitted a complaint for all communications related to complaints or investigations against Cathleen Hammel, a computer support technician in the dean’s office at the Neag School of Education. On May 13, Manocchio submitted two additional requests seeking email and telephone records, as well as computer and phone activity for additional UConn employees and several search terms.

On June 17, 2024, UConn turned over what they said were responsive records. The school redacted “emails to which the complainant was ‘a party,'” according to the hearing officer’s report, and records they claimed were exempt from disclosure because they were protected by attorney-client privilege.

The same day, Manocchio replied to UConn, questioning the completeness of the response and the appropriateness of the attorney-client privilege claim. In response to one email, UConn stated that “the records disclosed to the complainant in response to the Hammel request reflected only one complaint against Ms. Hammel, which was the one the complainant himself submitted to UConn Labor relations.” The school further claimed emails related to that complaint were protected by attorney-client privilege.

On July 11, Manocchio filed a complaint with the FOIC alleging that the school had violated FOIA by failing to provide all documents responsive to his request.

On September 11, 2024, UConn disclosed a second batch of records.

At a hearing on the complaint held on November 25, 2024, Manocchio argued that UConn had not been thorough in its search for responsive records and requested an in camera review of documents that had been redacted or withheld. Manocchio further claimed UConn should have contacted campus police, the dean, and “other staff members employed in various departments with the respondent university as part of their search for responsive records.”

The hearing officer found UConn was reasonable in limiting its response to Hammel and two other staff members named in Manocchio’s request and also found that UConn’s public records director searched the email messages of all three named staff members and turned over records that were found. The hearing officer further found that Hammel and other staff members were directed to search their own university and personal phones and that responsive records were turned over to Manocchio. The FOIC, therefore, concluded that UConn did conduct a thorough search for records.

However, the FOIC found UConn improperly withheld the records it withheld under FOIA’s attorney-client privilege exemption because “disclosure of an attorney-client privileged communication to a third party waives the privilege.” The hearing officer found that UConn disclosed an email to Manocchio that contained a summary of the legal advice it was seeking to withhold under the attorney-client privilege, thus waiving the exemption.

The hearing officer found that while UConn had properly applied the attorney-client privilege to records it withheld, “the attorney-client privilege has been waived with respect to such records because the redacted portions contained therein appear to have been provided to the complainant in other responsive records previously disclosed by the respondents.”

The FOIC found that other records which UConn had claimed were exempt did not contain communications between a public official and a government attorney relating to legal advice submitted from the attorney to the public agency client and transmitted in confidence, as is required for the attorney-client privilege to apply, and should not have been withheld.

Further, the FOIC found UConn “withheld from the complainant records responsive to his requests that were generated by the complainant himself” and only released records Manocchio had created “if they were contained within other intra-university communication, such as forwarded emails between university personnel.”

FOIA does not allow public agencies to withhold records created by requesters from them. The FOIC therefore found UConn violated FOIA by withholding those records. They ordered the school to turn over the records for which attorney-client privilege had been improperly withheld and the records created by Manocchio at no charge.

At the FOIC meeting where the commission voted to adopt the hearing officer’s report, an attorney for UConn objected to the order to turn over records for which it had claimed attorney-client privilege, claiming the hearing officer’s finding appeared to be based on a misrepresentation of facts and law. They argued the hearing officer was claiming UConn had waived attorney-client privilege when the client in the emails contacted human resources, which was not the case, and asked that the order to turn over those records be rescinded.

The hearing officer argued that the waiver didn’t occur when the client contacted human resources but when UConn turned over the contents of an email to Manocchio without redactions that summarized “mostly verbatim” the legal advice that was given to her.

UConn’s attorney at one point asked the FOIC to enter into executive session to review the records that were at issue, which the commission declined to do. He also said that adopting the hearing officer’s report would be an attack on attorney-client privilege. Commission members voted unanimously to adopt the hearing officer’s report.

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