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CT Court Holds Communications Between Public Agency and Attorneys Not Always Exempt from FOIA

Publisher: Day Pitney Alert
September 2, 2016

The CT Freedom of Information Act (FOIA) provides an exemption from disclosure for "communications privileged by the attorney-client relationship." Conn. Gen. Stat. § 1-210(b)(10). The Connecticut Supreme Court, in Harrington v. Freedom of Information Commission (SC 19586), recently held that this exemption does not shield from disclosure all communications between a public agency and its attorneys.

While the court recognized that the attorney-client privilege would extend to those communications constituting legal advice only, it recognized that many communications between a public agency and its attorneys address nonlegal matters. In those cases, the fact that such communications were between an attorney and a client would not in and of itself bring them within the FOIA exemption. As to those communications covering both nonlegal and legal matters, the court rejected the notion that the test for exemption is whether the communication of both legal and nonlegal matters were "inextricably linked." Instead, the court adopted a "primary purpose" test, noting the broad consensus in other jurisdictions that "if the non-legal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation, both the client's communications and the lawyer's advice and assistance that reveals the substance of the communications will be afforded the protection of the privilege."

The court, using its newly articulated standard, remanded the matter before it to the Freedom of Information Commission for proceedings.

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