The University of Connecticut (UConn) is appealing a Freedom of Information Commission (FOIC) decision finding that the school waived attorney-client privilege on a record when they shared it with a third-party and were required to disclose it under the Freedom of Information Act (FOIA).

In response to a request submitted by Paul Manocchio, in part seeking investigation records involving Cathleen Hammel, an employee in the dean’s office at the Neag School of Education, UConn redacted emails to which he was a party. The FOIC found UConn only released records involving Manocchio in response to his request if they “were contained within other intra-university communication, such as forwarded emails between university personnel.”

The FOIC also found that while UConn had properly applied attorney-client privilege to other records it withheld, it waived that privilege when it gave Manocchio an unredacted email that summarized “mostly verbatim” the legal advice an internal client sought from the general counsel. According to UConn, the client sent an email to the school’s human resources department and said they had been “referred” there by general counsel. They deny that this waives attorney-client privilege.

UConn objected to the FOIC’s order that the school turn over the records for which it had claimed attorney-client privilege to Manochio without charge at the time it was adopted. Now, the school has filed an administrative appeal in superior court seeking to have the decision ordering them to turn over records they claim are still covered by attorney-client privilege thrown out.

UConn previously submitted a motion to stay the order to the FOIC, alleging the commission had failed to identify where UConn turned over documents with unredacted legal advice, waiving attorney-client privilege.

During a public meeting where the FOIC adopted the hearing officer’s report, a lawyer representing UConn asked to convene in executive session to review the record and determine whether it waived attorney-client privilege. The FOIC refused to do so, but the commission did hold a recess where some commissioners reviewed the record.

The school’s attorney also argued during the meeting that hearing officer Marybeth Sullivan was claiming UConn had waived attorney-client privilege when the client in the email in question contacted human resources. Sullivan argued the waiver came when they turned over an email that summarized the legal advice given to her.

The FOIC voted unanimously to adopt Sullivan’s hearing report and voted unanimously to reject UConn’s motion to stay the decision.

UConn’s appeal of the FOIC’s decision reiterates arguments it made before the FOIC, calling their decision an attack on attorney-client privilege and claiming it did not identify where the waiver occurred.

UConn’s appeal also claims the FOIC voted to adopt its final decision “despite having engaged in substantive discussion that included a new analysis of evidence and citing multiple cases that were absent from the proposed final decision.”

During discussion, Sullivan stated that she had relied on several previous court decisions impacting attorney-client privilege in helping her come to her finding. UConn’s appeal objects to these not being referenced in the decision the commission adopted.

“Although the Commission had the opportunity to revise the proposed decision to reflect this, it chose to adopt the proposed decision as is, without incorporating the updated legal and evidentiary considerations that had emerged after the proposed final decision was issued.” the appeal claims.

It is common practice for FOIC commissioners to discuss the content of proposed final decisions after hearing from both the complainant and the responsive agency, the hearing officer, and sometimes the commission’s executive director, prior to voting on the decision or making decisions to alter it.

The school also maintains that the final decision is not clear about which records waived attorney-client privilege, citing language in the decision stating records UConn redacted “appear to have been provided to Manocchio’ in other responsive records previously disclosed.”

State statute allows agencies to appeal rulings against it within 45 days if they believe their rights have been prejudiced in a number of ways. UConn’s complaint argues their rights have been prejudiced because the FOIC’s decision rests on “unlawful procedure,” was erroneous in view of the whole record, and abused the agency’s decision.

The school is asking the court to vacate the FOIC’s ruling and remand the case to the commission to find that they did not waive attorney-client privilege.

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