Public agencies often secure opinions from legal counsel to guide their actions. However, these agencies should be aware that what they say in public about the advice given may jeopardize the confidentiality of the legal opinion.
In Cragg v. First Selectman Town of Marlborough, #FIC 2013-452 (May 28, 2014), a citizen requested a copy of opinions from the Town Attorney and Bond Counsel explaining the status of a Town Meeting budget vote, along with a copy of the billing records for all attorneys working for the Town. The Town asserted that the legal opinions were privileged communications exempt from disclosure. In addition, the Town redacted from the bills “privileged information.” The citizen appealed to the Freedom of Information Commission [“FOIC”], alleging that the Town violated the Freedom of Information Act [“FOIA”] by failing to provide her with all of records she requested.
The FOIC agreed with the Town that the redacted portions of the billing records were exempt from disclosure under the FOIA exception permitting agencies to withhold records of “communications privileged by the attorney-client relationship.” Connecticut General Statutes §1-210(b)(10). With regard to attorney billing records, the identity of the client, the amount of the fee, the identification of payment by matter name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege. However, the portion of the attorneys’ bills and time records which reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege. In Cragg, the billing records included detailed, dated entries describing the specific nature of the work being performed, including the focus of the legal research performed. The FOIC found that the redacted information contained in the descriptive section of the billing records fell within the protections of the attorney-client privilege and was exempt from disclosure.
With regard to the legal opinion, there was no dispute that the opinion itself would normally be protected from disclosure, as the attorney-client privilege normally protects “those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.” Maxwell v. FOIC, 260 Conn. 143, 149 (2002).
However, the FOIC agreed with the complaining citizen that the Town waived the attorney-client privilege when the First Selectman publicly disclosed the substance of the legal opinion at a Board of Finance meeting. Specifically, during her presentation at this public meeting, the First Selectman referred to and discussed the legal opinion provided by (and her conversations with) legal counsel. The First Selectman at times paraphrased the advice provided by counsel and at other times used the exact language contained in the legal opinion. Thus, as the legal opinion was no longer exempt from disclosure, the Town was required to provide the citizen with a copy of the opinion.
So what should we do now? While the Cragg decision reinforces how law firms should design their bills, it also reinforces the dilemma that public agencies face when dealing with controversial issues. An agency may want to broadcast that its attorney has blessed its actions, and may want to tell critics (charitably speaking) how misguided they are. However, by discussing the details of the opinion in any manner (beyond simply stating that the agency secured an opinion and as a result of the opinion the agency is taking a certain action or believes that it has acted legally), the agency may eliminate the confidential nature of the opinion. While there may be times that the agency wants to have an opinion released to the public, its attorney may have a different viewpoint, since the opinion could contain items (from a strictly legal standpoint) best left unsaid publically. It is important that the agency and its attorney be on the same page with regard to any public pronouncements.