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Harrington v. Freedom of Information Commission

Supreme Court of Connecticut

September 6, 2016

MICHAEL C. HARRINGTON
v.
FREEDOM OF INFORMATION COMMISSION ET AL.

          Argued April 1, 2016

          Michael C. Harrington, with whom, on the brief, was Jennifer A. Corvo, for the appellant (plaintiff).

          Daniel J. Krisch, with whom, on the brief, was Daniel E. LaBelle, for the appellee (defendant Connecticut Resources Recovery Authority).

          Paula Pearlman, for the appellee (named defendant).

          Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.[*]

          OPINION

          McDONALD, J.

         Clients call upon attorneys to provide advice on a range of matters, some that may be purely legal, some that may be purely nonlegal, and others where the line between legal and nonlegal advice is more nuanced. This case provides an opportunity to address the circumstances under which communications relating to both nonlegal and legal advice may be covered by the attorney-client privilege.

         The plaintiff, Michael C. Harrington, appeals from the trial court's judgment dismissing his appeal from the decision of the Freedom of Information Commission, [1]which concluded that e-mails that the plaintiff sought from the defendant Connecticut Resources Recovery Authority[2] fall within the exemption from disclosure under the Freedom of Information Act (act) for communications subject to the attorney-client privilege. See General Statutes § 1-210 (b) (10). We conclude that the commission failed to apply the proper standard for assessing the communications at issue, which include communications that the commission characterized as containing a mix of business and legal advice. Therefore, the case must be remanded to the commission for further proceedings.

         The record reflects the following undisputed facts. The defendant is a public agency for purposes of the act. It assists Connecticut municipalities in managing, recycling and disposing of their solid waste. See generally New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 438, 970 A.2d 592 (2009). In late 2011, the plaintiff made a request to the defendant, pursuant to the act, seeking disclosure of, among other things: (1) all communications between Thomas Ritter and the defendant's staff and board of directors since January 1, 2007; and (2) all communications between Peter Boucher and the defendant's staff and board of directors since January 1, 2009. Ritter and Boucher are both attorneys with law firms, Brown Rudnick LLP, and Halloran & Sage LLP, respectively, which were under contract to provide legal services to the defendant during the periods at issue.[3] Ritter and Boucher are also registered lobbyists.[4]

         The plaintiff filed a complaint with the commission after the defendant failed to promptly produce the communications requested. After preliminary proceedings before the commission, the defendant provided many documents to the plaintiff, but withheld hundreds of others. Evidentiary hearings ensued before a commission hearing officer, where the parties contested whether the withheld documents were exempt from disclosure under the act's exemption relating to the attorney-client privilege.

         Although the plaintiff recognized that the defendant bore the burden of proof on this issue, he elected to present his case first. The plaintiff offered exhibits, as well as the testimony of Laurie Hunt, the defendant's director of legal services and the sole attorney on its staff during the periods at issue. Hunt was the only witness at the hearing. The evidence proffered established the following facts. In 2006, the defendant's president, Thomas D. Kirk, sought approval from the defendant's board of directors to enter into an agreement to retain Ritter as the defendant's consultant and community liaison. Kirk informed the board that the defendant previously had been utilizing Ritter's services under a legal services agreement, even though Ritter's services had ‘‘not been of a purely legal nature.'' One of the board members sought clarification whether Ritter was being hired as an attorney or a community liaison. Kirk responded that Ritter was being retained as a consultant and, in particular, a community liaison. Kirk represented that the new arrangement would provide more transparency and accuracy as to the services provided, as well as a cost benefit because Ritter would be retained for a fixed fee rather than being paid at the hourly rate under the legal services agreement.

         Following the board's approval, the defendant entered into various service agreements with Ritter and Brown Rudnick: a Host Community Liaison Services Agreement in 2006; a Municipal Government Advisor Services Agreement in 2007; and a Municipal Government Liaison Services Agreement in 2009 (collectively, liaison agreements). These liaison agreements designated Brown Rudnick, and Ritter specifically, as the defendant's ‘‘consultant.'' One of these liaison agreements described the scope of the consultant's services as, including, but not limited to, the following:

         (a) ‘‘Provide [the defendant] with insight and outreach relative to [the defendant] and its interactions with municipalities that are currently and/or that may become hosts to the [the defendant's] facilities and pertinent or related groups and organizations that are and/or may become affected by [the defendant's] facilities. . . .''

         (b) ‘‘Act as a community liaison for [the defendant] to provide counsel and outreach to current and/or potential host communities in connection with local issues in the community and the state of Connecticut in general.''

         (c) ‘‘Recommend to [the defendant] ways to improve outreach to the current and/or potential host communities . . . .''

         (d) ‘‘Provide counsel to [the defendant] to assist [the defendant] with its critical goals in the current and/ or potential host communities, as well as develop and enhance [the defendant's] relationships with [these] host communities.''[5]

         With one exception, Ritter's services were billed exclusively under these liaison agreements and were invoiced as ‘‘General Business Advice.'' The only exception was a special agreement, executed in 2011, under which Ritter provided ‘‘legislative monitoring and advice'' while two bills were pending before the legislature that would have made substantial changes to the operations of the defendant. Accordingly, subsequent to the execution of the liaison agreements, there was no evidence that Ritter ever billed the defendant for providing ‘‘legal advice'' under the liaison agreements, that he ever billed the defendant under the legal services agreement, or that he billed the defendant under the hourly rate that was prescribed under the legal services agreement.

         Hunt testified, however, that the defendant had relied on Ritter and Boucher for legal advice and that such advice often had been provided. Hunt opined that legal advice likely was being solicited in communications, even when the only response to the communication came from a person who was not an attorney. Hunt speculated that legal advice may have been provided in response to some e-mails through some channel other than e-mail. In particular, she stated that ‘‘it's also possible to solicit advice through an e-mail but to get a response in a phone call. That frequently happens.'' She further opined that services provided by Ritter for ‘‘monitoring legislation'' were legal services, explaining that the defendant has a ‘‘legal interest'' in proposed legislation that may affect it and that seeking advice on pending legislation is a request for legal advice. Hunt opined that an e-mail from Kirk to both Ritter and the defendant's director of public relations, indicating that Kirk was going to have a meeting with legislators, would be a solicitation of legal advice from Ritter but not the director, under the view that ‘‘[s]ometimes it's necessary just to keep the lawyers up to speed on what's going on so that they can provide legal advice.''

         Hunt addressed two particular controversies in which the defendant was involved, one of which had resulted in several arbitration and judicial proceedings over a period of years. She acknowledged that Ritter had never entered an appearance in any ...


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