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*********************************************** 
CLERK OF THE COMMON COUNCIL v. FREEDOM OF

INFORMATION COMMISSION ET AL.

(AC 44284)

SEBASTIAN GIULIANO ET AL. v. FREEDOM OF

INFORMATION COMMISSION ET AL.

(AC 44295)

Moll, Alexander and Suarez, Js.

Syllabus

In each of two cases, the defendant Freedom of Information Commission

appealed from the judgment of the trial court sustaining an appeal from

the commission’s decision ordering the disclosure of unredacted records

after rejecting the claims of the city of Middletown that the requested

information was protected. A city employee alleged that the city’s mayor

had harassed her and a union representing city employees alleged that

the mayor had improperly solicited campaign contributions from its

members. In response to these complaints, the city’s legislative body,

the common council, hired a law firm to conduct an investigation. In

the first case, the defendant D, a former member of the common council,

sent a request to the plaintiff, the clerk of the common council, for,

inter alia, invoices submitted to the city by the law firm in connection

with its investigation. In response, the clerk sent D the requested records

after redacting the names of city employees and the dates on which

meetings occurred between those employees and the law firm’s attorneys. Thereafter, D filed a complaint with the commission challenging

the redactions with respect only to the name of the clerk and the dates

of the meetings. Following a hearing, the commission ordered that the

requested records be produced without the contested redactions. The

clerk appealed to the trial court, which sustained her objection,

determining that the redacted information was exempt from disclosure

pursuant to the applicable statute (§ 1-210 (b) (2) and (10)), and the

commission appealed to this court.

In the second case, the defendant mayor filed a complaint with the commission after the clerk produced redacted records in response to his request

for, inter alia, communications between the law firm and the city. The

commission ordered the disclosure of certain records but permitted the

redaction of the names of then current city employees and their job

titles. Thereafter, the plaintiffs, two members of the common council

and the clerk, appealed to the trial court. The trial court sustained the

appeal of the common council members, determining that the records

at issue were exempt from disclosure pursuant to § 1-210 (b) (10)

because they were protected by the attorney-client privilege, and it

dismissed the clerk’s appeal. The commission appealed to this court,

and, thereafter, the two appeals were consolidated. On the commission’s

appeals to this court, held:

1. With respect to the commission’s appeal in the first case, AC 44284, the

trial court did not err in concluding that the records at issue were similar

in nature to personnel files and constituted similar files under § 1-210

(b) (2), as the records, invoices with redactions of the names of city

employees and the dates on which meetings occurred between the

employees and attorneys at the law firm, were created as a result of

the law firm’s investigation of the complaints brought against the mayor

and could have been used in determining whether the mayor should

have been dismissed or subjected to other personnel actions; moreover,

the information contained in the invoices was exempt from disclosure

pursuant to § 1-210 (b) (2) if such disclosure would constitute an invasion

of personal privacy, and, accordingly, the case was remanded to the

commission for further factual findings relating to whether the disclosure of the redacted information would constitute an invasion of privacy,

as the commission previously did not reach the issue because it erroneously had determined that the records were not personnel or similar
files; furthermore, the trial court erred in concluding that the name of

the clerk and the dates of the interviews of city employees by the law

firm’s attorneys were exempt from disclosure as privileged attorneyclient communications under § 1-210 (b) (10), as the four part test set

forth in Shew v. Freedom of Information Commission (245 Conn. 149)

for determining whether communications were protected by the attorney-client privilege was not met, the mere fact that a meeting had taken

place between the clerk and the attorneys did not constitute a privileged

communication, disclosure of the name of the clerk would not reveal

the substance of the communication or the specific nature of the services

provided, and the dates of interviews did not relate to legal advice or

reveal the specific nature of the services provided.

2. With respect to the commission’s appeal in the second case, AC 44295,

the case was remanded to the commission for further factual findings

because the commission had failed to make determinations concerning

two of the Shew test factors, namely, whether, pursuant to § 1-210 (b)

(10), communications were made between city employees and the law

firm’s attorneys and, if so, whether any such communications were

made in confidence.

Argued November 9, 2021—officially released September 27, 2022

Procedural History

Appeal, in the first case, from the decision of the

named defendant ordering the disclosure of certain

unredacted billing records, brought to the Superior

Court in the judicial district of New Britain and tried

to the court, Cordani, J.; judgment sustaining the plaintiff’s appeal, from which the named defendant appealed

to this court; appeal, in the second case, from the decision of the named defendant ordering the disclosure

of certain unredacted email records, brought to the

Superior Court in the judicial district of New Britain

and tried to the court, Cordani, J.; judgment dismissing

the appeal of the plaintiff Linda Reed and sustaining

the appeal of the named plaintiff et al., from which the

named defendant appealed to this court; thereafter, this

court granted the named defendant’s motion to consolidate the appeals. Reversed in part; further proceedings

in Docket No. AC 44284; reversed; further proceedings

in Docket No. AC 44295.

Danielle L. McGee, commission counsel, with whom,

on the brief, was Colleen M. Murphy, general counsel,

for the appellant (named defendant in both appeals).

Michael C. Harrington, for the appellees (plaintiff

in Docket No. AC 44284 and named plaintiff et al. in

Docket No. AC 44295).
Opinion

ALEXANDER, J. These consolidated appeals arise

out of an investigation by the city of Middletown (city)

into alleged improprieties by the former mayor and the

city’s subsequent refusal to provide unredacted records

related to that investigation on the ground that the

records were not subject to disclosure under the Freedom of Information Act (act), General Statutes § 1-200

et seq. The defendant Freedom of Information Commission (commission)1 appeals from the judgments of the

Superior Court in Docket No. AC 44284, sustaining the

appeal of the plaintiff, the Clerk of the Common Council

for the city (clerk of the common council), and in

Docket No. AC 44295, sustaining the appeal of the plaintiffs Sebastian Giuliano and Mary Bartolotta2

from the

commission’s decisions ordering disclosure of unredacted billing and email records, respectively, after

rejecting the city’s claims that the information at issue

was either protected personnel or similar files or subject to the attorney-client privilege. In AC 44284, the

commission claims that the court erred in (1) concluding that the attorney billing records were personnel or

similar files pursuant to General Statutes § 1-210 (b)

(2); (2) making a factual finding that the disclosure of

the redacted information would constitute an invasion

of personal privacy and was thus prohibited under § 1-

210 (b) (2); and (3) concluding that certain information

in attorney billing records was exempt from disclosure

as privileged attorney-client communications pursuant

to § 1-210 (b) (10). In AC 44295, the commission claims

that the court erred in concluding that certain email

communications also were privileged attorney-client

communications protected under § 1-210 (b) (10). We

agree with the commission except with respect to the

issue of whether the invoices constitute personnel or

similar files. Therefore, in AC 44284, we affirm in part

and reverse in part the judgment of the court. In AC

44295, we reverse the judgment of the court.

I

AC 44284

We first address the appeal brought under Docket

No. AC 44284. The following facts and procedural history are relevant to our resolution of this appeal. In

December, 2017, a city employee complained that the

mayor, Daniel Drew, unlawfully had harassed her. Additionally, a union representing city employees sent a

letter to the city alleging that the mayor improperly

had been soliciting campaign contributions from city

employees. In response, the common council, which is

the city’s legislative body, hired an outside law firm,

LeClairRyan, to conduct an investigation into the complaints. Attorney Margaret Mason of LeClairRyan

served as lead counsel on the investigation. The common council also created a special investigative sub-
committee, which was comprised of three of the common council’s twelve members: Bartolotta, Giuliano,

and Thomas Serra.

On September 7, 2018, Gerald Daley, a former member of the common council, sent a records request to

the clerk of the common council, who was the records

custodian for the common council, in which he stated

in relevant part: ‘‘I am requesting an opportunity to

inspect or obtain copies of public records comprising

the complete billing statements and invoices, including

all non-privileged supporting documentation, submitted

by LeClairRyan . . . between January 25, 2018 and

August 13, 2018.’’ Pursuant to General Statutes § 1-214

(b) (1),3

the city gave notice to all employees whose

names appeared in the responsive documents and a

number of employees objected in writing to the disclosure of their identities. In response, the clerk of the

common council sent Daley the requested records with

redactions of the names of city employees and the clerk

of the common council, as well as redactions of the

dates on which meetings occurred between the employees and attorneys at LeClairRyan.

Thereafter, Daley filed a complaint with the commission and a contested case hearing was held on January

3, 2019. At the hearing, Daley indicated that he was

challenging only the redactions of the clerk of the common council’s name and the dates of the meetings

between city employees and LeClairRyan attorneys. He

did not challenge the redactions of the names of other

city employees. The common council asserted that the

redacted portions of the records were exempt from

public disclosure pursuant to § 1-210 (b) (2)4 or (10).5

At the conclusion of the hearing, the hearing officer

ordered the common council to submit to the commission all of the records at issue for an in camera review.

On September 17, 2019, the commission issued its

final decision in which it ordered that the requested

records be produced without redactions of the clerk of

the common council’s name and the dates and locations

of interviews. The commission determined that the

requested records are public records within the meaning of General Statutes §§ 1-200 (5), 1-210 (a) and 1-212

(a). It concluded that the attorney billing records did

not constitute ‘‘ ‘personnel’ or ‘similar’ files within the

meaning of § 1-210 (b) (2).’’ It further concluded that

none of the redactions were ‘‘ ‘oral or written communications’ within the meaning of [General Statutes § 52-

146r (2)].6

. . . [T]he redacted information does not

reveal the motive of the common council in seeking

representation, litigation strategy or the specific nature

of the services provided. . . . Accordingly, it is concluded that the date and place of the legal meetings

and the name of the clerk of the common council (to

the extent such name is contained in the in camera

records) are not exempt from disclosure pursuant to
§ 1-210 (b) (10).’’ (Footnote added.)

Thereafter, the clerk of the common council appealed

to the Superior Court. On September 3, 2020, after a

hearing, the court issued a memorandum of decision

sustaining the appeal and rendering judgment for the

clerk of the common council. In its decision, the court

concluded that the redacted information was exempt

from disclosure pursuant to both § 1-210 (b) (2) and

(10).

First, the court determined that the redaction of the

clerk of the common council’s name was exempt from

disclosure pursuant to § 1-210 (b) (2) because the

records were personnel or similar files and redaction

was necessary to prevent the invasion of the personal

privacy of the clerk of the common council. It explained

that the ‘‘invoices were produced solely in connection

with a personnel investigation. . . . The results of the

investigation and any actions taken therefrom are

clearly personnel actions. The investigation, its results,

and any consequent actions were meant to impact the

mayor, the city employees who complained, and city

employees generally. The documents contain information that is pertinent to personnel decisions.’’

The court reasoned that the clerk of the common

council ‘‘participated in the investigation to facilitate

the investigation on behalf of the common council, and

also potentially as a witness, whistleblower and/or complainant. Our Supreme Court has recognized the concern associated with disclosing the identifying information of individuals who report harassment or who

participate in an investigation concerning allegations

of harassment in the workplace. . . . [R]evealing the

identity of such complainants or participants in a

harassment investigation in this context could facilitate

retaliation and could inhibit people from participating

in such investigations. In this case, that concern is

heightened because Daley has consented to the redaction of the names of all current city employees except

solely for that of the clerk of the common council. This

focus on a particular city employee gives an even higher

degree of concern.’’ (Citations omitted.) The court

found that the information sought from the records did

not relate to legitimate matters of public concern and

that disclosure would be highly offensive to a reasonable person because it would facilitate retaliation and

would inhibit future participation in such investigations.7

The court further concluded that the redacted information in the invoices relating to the names of city

employees interviewed by attorneys from LeClairRyan,

as well as the time spent on each interview and the

date and place of each interview, were protected by

the attorney-client privilege. It explained that, although

‘‘attorney invoices may not necessarily be entirely privileged, the information contained in the invoices must
be analyzed in the same way any communication

between the attorney and the client is analyzed for

privilege. . . . [T]he applicability of the attorney-client

privilege to the information in question is apparent from

the documents themselves, the context of the harassment allegations, and the attorney’s assignment to conduct a workplace harassment investigation.’’ This

appeal followed.

We begin by setting forth our standard of review and

the legal principles that guide our analysis. ‘‘The scope

of our review of the merits of the plaintiffs’ argument

is governed by a provision of the [act], General Statutes

§ 1-206 (d), and complementary rules of the Uniform

Administrative Procedure Act . . . General Statutes

§ 4-166 et seq. [W]e must decide, in view of all of the

evidence, whether the agency, in issuing its order, acted

unreasonably, arbitrarily or illegally, or abused its discretion. . . . Even as to questions of law, [t]he court’s

ultimate duty is only to decide whether, in light of the

evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency

must stand if the court determines that they resulted

from a correct application of the law to the facts found

and could reasonably and logically follow from such

facts. . . . Although the interpretation of statutes is

ultimately a question of law . . . it is the well established practice of this court to accord great deference to

the construction given [a] statute by the agency charged

with its enforcement. . . . Where, as in this case, the

application of the statute to the documents at issue is

fact bound, the abuse of discretion standard governs

the appeal. . . .

‘‘By way of background, we discuss briefly the policy

of the act. [T]he overarching legislative policy of [the

act] is one that favors the open conduct of government

and free public access to government records.8

. . .

[I]t is well established that the general rule under the

[act] is disclosure, and any exception to that rule will

be narrowly construed in light of the general policy of

openness expressed in the [act]. . . . [Thus] [t]he burden of proving the applicability of an exception [to

disclosure under the act] rests upon the party claiming

it.’’ (Citations omitted; footnote added; internal quotation marks omitted.) Lindquist v. Freedom of Information Commission, 203 Conn. App. 512, 525–26, 248 A.3d

711 (2021).

A

We first address the commission’s claim that the

court erred in concluding that the invoices at issue are

personnel or similar files. We disagree.

Section 1-210 (b) provides in relevant part: ‘‘Nothing

in the Freedom of Information Act shall be construed

to require disclosure of . . . (2) [p]ersonnel or medical
files and similar files the disclosure of which would

constitute an invasion of personal privacy . . . .’’

‘‘When [a] claim for exemption involves [§ 1-210 (b)

(2)],9

the plaintiffs must meet a twofold burden of proof

. . . . First, they must establish that the files in question are within the categories of files protected by the

exemption, that is, personnel, medical or similar files.

Second, they must show that disclosure of the records

would constitute an invasion of personal privacy. . . .

Determination as to whether either prong has been

satisfied is, in the first instance, a question of fact for

the [commission], to be determined pursuant to the

appropriate legal standards.’’ (Citation omitted; footnote added; internal quotation marks omitted.) Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 38,

657 A.2d 630 (1995).

The terms ‘‘personnel’’ and ‘‘similar’’ files are not

defined in the act; however, our courts have interpreted

the meaning and scope of such terms. ‘‘ ‘We interpret

the term ‘‘similar files’’ to encompass only files similar

in nature to personnel or medical files.’ ’’ Id., 40. Our

Supreme Court has stated that a determination of

whether a file is similar to a personnel file ‘‘requires a

functional review of the documents at issue. . . . [A]

‘personnel’ file has as one of its principal purposes the

furnishing of information for making personnel decisions regarding the individual involved. If a document

or file contains material, therefore, that under ordinary

circumstances would be pertinent to traditional personnel decisions, it is ‘similar’ to a personnel file. Thus, a

file containing information that would, under ordinary

circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given

a raise, transferred, reassigned, dismissed or subject

to other such traditional personnel actions, should be

considered ‘similar’ to a personnel file for the purposes

of [§ 1-210 (b) (2)].’’ Id., 41.

In Connecticut Alcohol & Drug Abuse Commission,

the records at issue pertained to an investigation regarding complaints of sexual harassment filed by police

officers against a fellow officer. Id., 30–31. Our Supreme

Court concluded that the investigation file was a ‘‘ ‘similar’ ’’ file and explained that, although ‘‘reports of incidents occurring in the workplace are not ‘personnel

files’ per se, they may be similar to personnel files in

that they may contain information that would ordinarily

be considered in making personnel decisions regarding

the individuals involved. Such reports would be functionally similar to information contained in the individual’s personnel files. [Section 1-210 (b) (2)] requires a

case-by-case analysis to determine whether a particular

file is a ‘similar file.’ ’’ Id., 42.

In Almeida v. Freedom of Information Commission,

39 Conn. App. 154, 155, 158, 664 A.2d 322 (1995), this
court held that an investigative file regarding an altercation between the plaintiff, who was a guidance counselor, and a student was a personnel or similar file. The

records at issue ‘‘were kept in a locked location separate

from any personnel file, [but] contained the following:

descriptions of the incident which took place in an

open classroom; a list of exhibits, including a classroom

description, pertinent public acts, school policy and

faculty handbooks; the names of individuals providing

statements; names, ages and grades of student witnesses interviewed; the name of the teacher’s union

representative, a description of the fact-finding efforts

and a statement of the case status; statements of . . .

the complainant’s son, and two other teachers; and an

overhead chart of the classroom and desk arrangement.’’ (Internal quotation marks omitted.) Id., 159–60.

The court explained that ‘‘[t]he documents in the file

contain information relevant to ascertaining whether

the plaintiff assaulted a student and were reviewed to

determine whether the plaintiff was to be exonerated

or whether he was to be subject to disciplinary action,

or perhaps even discharged, as a result of the incident.

The cumulative effect of these documents, therefore,

had a direct bearing on the employment status of the

plaintiff. In this way, the file is ‘similar’ to a personnel

file.’’ Id., 160.

In Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 628, 609 A.2d 998

(1992), our Supreme Court held that ‘‘a permit to carry

a pistol or revolver is not ‘similar’ to a medical or personnel file’’ and, therefore, the information therein was not

exempt from disclosure pursuant to § 1-210 (b) (2).

In that case, a request was sent to the plaintiffs, the

superintendent of police of the city of Bridgeport and

the Bridgeport Police Department, asking for ‘‘a list of

all those residents of Bridgeport who possessed municipal permits to carry pistols or revolvers.’’ Id., 623. Specifically, the requester ‘‘desired to know the individual’s

name, birthdate, address, telephone number, occupation, sex, date of issuance of the permit and what weapons were registered to the individual.’’ Id., 624. Our

Supreme Court, in concluding that the pistol permits

were not ‘‘ ‘similar’ ’’ files, reasoned that, ‘‘[i]n common

parlance, a permit to carry a pistol or revolver is not

‘similar’ to a medical or personnel file. Unlike a personnel or medical file, a permit to carry a pistol or revolver

does not contain detailed information with a potential

for disclosure of the intimate details of one’s personal

life or capabilities. To conclude that a permit to carry

a pistol or revolver is ‘similar’ to a medical or personnel

file and therefore exempt from disclosure would be a

broad interpretation of § [1-210 (b) (2)] that would

stretch the ordinary meaning of ‘similar’ to the breaking

point. Such an interpretation would be inconsistent

with the general principle that exceptions to disclosure

must be narrowly construed.’’ (Footnotes omitted.)
Id., 628.

The question before this court is whether the commission properly determined that the attorney invoices are

not personnel or similar files. We conclude, as did the

court, that the commission incorrectly determined that

the attorney billing records are not personnel or similar

files within the meaning of § 1-210 (b) (2). The records

at issue are invoices with redactions of the names of city

employees and the dates of the meetings that occurred

between the employees and the attorneys at LeClairRyan. The invoices were created as a result of an investigation conducted by LeClairRyan after allegations of

harassment and improper solicitation of campaign contributions were brought against the mayor. The invoices

contained the names of city employees with whom

LeClairRyan had spoken in the course of its investigation, as well as the dates on which the interviews took

place. The information obtained in the course of the

investigation, therefore, could be used to inform any

necessary remedial action and in deciding whether the

mayor should be ‘‘dismissed or subject to other such

traditional personnel actions . . . .’’ Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, supra, 233 Conn. 41. The invoices,

therefore, are ‘‘ ‘similar in nature’ ’’ to personnel files

and constitute ‘‘ ‘similar’ ’’ files as that term is used in

§ 1-210 (b) (2). Id., 40, 42; see also Rocque v. Freedom

of Information Commission, 255 Conn. 651, 661–62,

774 A.2d 957 (2001) (‘‘written complaint of sexual

harassment made by an employee . . . the complainant’s detailed statement to investigating officer, and

notes from interviews of many coworkers taken during

the course of the department’s investigation of that

complaint’’ constituted personnel or similar files). Consequently, the information contained in the invoices,

including the name of the clerk of the common council,

is exempt from disclosure pursuant to § 1-210 (b) (2)

if disclosure of such information would constitute an

invasion of personal privacy. See Connecticut Alcohol &

Drug Abuse Commission v. Freedom of Information

Commission, supra, 38.

B

The commission next argues that the court erred in

making factual findings because the commission did

not make any determination as to whether disclosure

of the redacted information would constitute an invasion of personal privacy under § 1-210 (b) (2). Specifically, the commission contends that, ‘‘[b]ecause the

[commission] found that the billing records did not

constitute personnel or similar files . . . the [commission] did not reach a finding as to whether disclosure

would constitute an invasion of personal privacy.

Because the Superior Court concluded that the [commission’s] finding was clearly erroneous, the court

should have remanded the matter to the [commission]
to consider whether the disclosure would result in an

invasion of personal privacy.’’ In light of our conclusion

that the court correctly determined that the records are

personnel or similar files, we agree with the commission

that the case should be remanded to the commission

for factual findings in regard to whether disclosure of

the redacted information would constitute an invasion

of personal privacy. Because the commission determined that the records did not constitute personnel or

similar files within the meaning of § 1-210 (b) (2), it did

not reach the issue of whether disclosure of the invoices

would constitute an invasion of personal privacy. ‘‘Such

a determination is for the [commission] in the first

instance.’’ Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, supra,

233 Conn. 43; see also Shew v. Freedom of Information

Commission, 245 Conn. 149, 160–61, 714 A.2d 664

(1998). We are obligated, therefore, to direct the remand

of the matter to the commission for a determination as

to whether disclosure of the name of the clerk of the

common council and the dates contained in the invoices

would constitute an invasion of privacy pursuant to § 1-

210 (b) (2).

C

Finally, the commission argues that the court erred

in concluding that the name of the clerk of the common

council and the dates of interviews by counsel with city

employees are exempt from disclosure as privileged

attorney-client communications.10 We agree.

Section 1-210 (b) provides in relevant part: ‘‘Nothing

in the Freedom of Information Act shall be construed

to require disclosure of . . . (10) . . . communications privileged by the attorney-client relationship

. . . .’’ ‘‘[T]he essential elements of the attorney-client

privilege under both statutory and common law are

identical.’’ Lash v. Freedom of Information Commission, 300 Conn. 511, 516, 14 A.3d 998 (2011). We apply

a four part test to determine whether communications

are privileged: ‘‘(1) the attorney must be acting in a

professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications

must relate to the legal advice sought by the agency

from the attorney, and (4) the communications must

be made in confidence.’’ (Footnote omitted; internal

quotation marks omitted.) Shew v. Freedom of Information Commission, supra, 245 Conn. 159. ‘‘[T]he party

claiming an exemption from the disclosure requirements of the act bears the burden of establishing the

applicability of the exemption.’’ Lash v. Freedom of

Information Commission, supra, 517. The privilege

must be established ‘‘for each document separately considered’’ and must be ‘‘narrowly applied and strictly

construed.’’ Harrington v. Freedom of Information

Commission, 323 Conn. 1, 12, 144 A.3d 405 (2016).
‘‘[T]here is a general agreement that attorney billing

statements and time records are protected by the attorney-client privilege only to the extent that they reveal

litigation strategy and/or the nature of services performed . . . . Thus, statements and records that simply reveal the amount of time spent, the amount billed,

and the type of fee arrangement between the attorney

and the client are fully subject to discovery.’’ (Emphasis

in original; internal quotation marks omitted.) Pryor

v. Pryor, Superior Court, judicial district of Fairfield,

Docket No. FA-08-4026674-S (January 22, 2010) (49

Conn. L. Rptr. 274, 275); see also Bernstein v. Mafcote,

Inc., 43 F. Supp. 3d 109, 115 (D. Conn. 2014) (billing

records not subject to attorney-client privilege because

‘‘they do not reveal the specific nature of the services

provided, but rather only reveal the general nature of

work performed’’). Information contained in invoices,

however, that reveals ‘‘the motive of the client in seeking representation, litigation strategy, or the specific

nature of the services provided . . . fall within the

privilege.’’ (Emphasis omitted; internal quotation marks

omitted.) Bruno v. Bruno, Superior Court, judicial district of Danbury, Docket No. FA-05-40049006-S (July 10,

2009). Furthermore, a client’s identity and information

related to where and when a client has conversations

with his or her attorney do not fall within the attorneyclient privilege. See Ullmann v. State, 230 Conn. 698,

712, 647 A.2d 324 (1994) (‘‘the mere fact that a meeting

took place between [an attorney] and his client did not

constitute a communication and such information is

not privileged for that reason’’); New Haven v. Freedom

of Information Commission, 4 Conn. App. 216, 220,

493 A.2d 283 (1985) (affirming commission’s order compelling disclosure of number of billing hours and general

subject matter designations on billing invoices and stating that ‘‘[q]uestions as to where and when a client had

conversations with his attorney have been found not

to be within the attorney-client privilege’’).

On the basis of our thorough review of the record,

we cannot conclude, as the trial court did, that the

commission acted unreasonably, arbitrarily, illegally, or

in abuse of its discretion in concluding that the name

of the clerk of the common council, to the extent it

appears in the invoices, and the dates of interviews,

were not exempt from disclosure. The four part test for

identifying communications protected by the attorneyclient privilege has not been met.

The clerk of the common council is a city employee

and a representative of the client, the common council.

Similar to the facts of Ullmann v. State, supra, 230

Conn. 712, the mere fact that a meeting took place

between the LeClairRyan attorneys and the clerk of the

common council, a representative of the client, does

not constitute a privileged communication. Furthermore, the disclosure of the name of the clerk of the
common council would not reveal ‘‘ ‘the substance of

any communication’ ’’; id.; that the clerk of the common

council had with the LeClairRyan attorneys and, therefore, would not reveal the specific nature of the services

provided.

Similarly, the dates of interviews are not privileged

attorney-client communications because they do not

relate to legal advice nor do they reveal the specific

nature of the services provided. The clerk of the common council failed to present evidence that the disclosure of only the date that an interview took place would

reveal the identity of individuals who participated in

the investigation. The dates of the interviews, therefore,

do not reveal the specific nature of services provided

and are not exempt from disclosure pursuant to the

attorney-client privilege.

Accordingly, in AC 44284 we affirm the judgment of

the court with respect to its determination that the

attorney invoices are personnel or similar files. With

respect to the court’s determination that disclosure of

the redacted information would constitute an invasion

of personal privacy pursuant to § 1-210 (b) (2), we

reverse the judgment of the court with direction to

remand the case to the commission for further proceedings to determine whether disclosure of the name of

the clerk of the common council and the dates of the

interviews would constitute an invasion of personal

privacy pursuant to § 1-210 (b) (2). We reverse the

judgment of the court with respect to its determination

that the name of the clerk of the common council, to

the extent it appears in the invoices, and the dates of

interviews are exempt from disclosure pursuant to § 1-

210 (b) (10).

II

AC 44295

We now turn to the appeal brought under Docket No.

AC 44295. The following facts and procedural history

are relevant to our resolution of this appeal. On August

7, 2018, Daniel Drew sent a records request to the clerk

of the common council requesting, inter alia, ‘‘copies

of any and all [emails], text messages, calendars, written

communications in any form, [unredacted] legal bills,

and cellular telephone logs pertaining to this investigation between members of the subcommittee, any

employee/associate/partner of [LeClairRyan], and any

staff of the city . . . .’’ In response to his request, Drew

received ‘‘a large package of records,’’ some of which

had been redacted.

Thereafter, Drew filed a complaint with the commission, and a contested case hearing was held on January

3, 2019. At the hearing, Drew indicated that he was not

challenging the redactions in the records he had already

received but, instead, argued that there were additional

responsive records, such as emails, that had not been
disclosed. Drew further contended that the common

council lacked the authority to hire an attorney for the

purpose of receiving legal advice, and, therefore, none

of the requested records should be exempt pursuant

to the attorney-client privilege. The common council

contended that the records were exempt from disclosure pursuant to § 1-210 (b) (2) or (10). At the conclusion of the hearing, the hearing officer ordered the

common council to submit to the commission all of the

records at issue for an in camera review.

On September 17, 2019, the commission issued its

final decision in which it ordered the common council

to disclose certain records identified in paragraph 48

of its final decision but permitted the redaction of the

names of any current city employees, as well as their job

titles. The commission determined that the requested

records are public records within the meaning of §§ 1-

200 (5), 1-210 (a), and 1-212 (a). It also determined that

the common council and LeClairRyan entered into an

attorney-client relationship. With regard to a number

of the records at issue, however, the commission determined that no legal advice was being sought by the

client or being provided by the attorney, and, therefore,

those records were not exempt from disclosure pursuant to the attorney-client privilege.

Thereafter, Giuliano, Bartolotta,11 and Linda Reed,12

appealed to the Superior Court. On September 10, 2020,

after a hearing, the court issued a memorandum of

decision sustaining the appeal and rendering judgment

for Giuliano and Bartolotta. In its decision, the court

concluded that the records at issue, identified in paragraph 48 of the commission’s final decision, were protected by the attorney-client privilege and, therefore,

were exempt from disclosure pursuant to § 1-210 (b)

(10).

The court identified the four part test used to determine whether information is covered by the attorneyclient privilege and determined that three of the four

prongs were clearly met. See Shew v. Freedom of Information Commission, supra, 245 Conn. 159. ‘‘[T]here is

no doubt that the LeClairRyan attorney was acting in

her professional capacity as an attorney. The attorney

was hired to conduct a workplace harassment investigation and report her findings and recommendations to

the common council. The documents in question are

clearly communications between the attorney and

either the clerk of the common council, who acted as

an agent for the common council, or other employees

of the city who were participating in the investigation

being conducted by the attorney. The communications

were made in confidence and were confidential absent

some disclosure here. Thus, the only remaining element

to be considered is whether the communications were

related to legal advice.’’ The court characterized the

documents at issue as communications from (1) the
clerk of the common council providing information to

the attorney in furtherance of the attorney’s investigation, (2) employees of the city seeking to speak with the

attorney in connection with the attorney’s investigation,

each of whom was officially interviewed by the attorney

in the conduct of her investigation, (3) the attorney to

the clerk of the common council conveying information

about the investigation, (4) the attorney to the common

council members concerning the investigation, and (5)

the attorney to specific city employees concerning interviewing the employees as part of the attorney’s investigation.

The court explained that, ‘‘[a]lthough some of these

documents contain logistical information concerning

the investigation, the information in the documents in

question: (i) supports the results of the investigation,

(ii) reveals the attorney’s thinking and strategy concerning the investigation by revealing her choices of information needed, employees to interview, and the time

spent with each employee, (iii) potentially suggests to

the alleged harasser the results of the investigation by

revealing whether the correct employees were interviewed, (iv) gives indications of what information certain employees have relevant to the investigation and

the employees’ attitudes, and (v) reveals the thoroughness of the investigation and the nature of the services

provided. Clearly, the foregoing documents relate to

the legal advice to be provided, and the communications

made therein were made in furtherance thereof.’’ This

appeal followed.

On appeal, the commission contends that the court

erred in concluding that certain email communications

were exempt from disclosure as attorney-client privileged communications pursuant to § 1-210 (b) (10). It

also contends that, because the commission did not

make factual findings with respect to each of the factors

of the test set forth in Shew v. Freedom of Information

Commission, supra, 245 Conn. 159, it was improper for

the court to make such findings and it should have

remanded the case to the commission for consideration

of those factors.

We begin with our standard of review and the legal

principles relevant to our resolution of this claim. As

we stated in part I of this opinion, ‘‘[t]he scope of our

review of the merits of the [plaintiff’s] argument is governed by a provision of the [act] . . . § 1-206 (d), and

complementary rules of the Uniform Administrative

Procedure Act . . . § 4-166 et seq. [W]e must decide,

in view of all of the evidence, whether the agency,

in issuing its order, acted unreasonably, arbitrarily or

illegally, or abused its discretion.’’ (Internal quotation

marks omitted.) Lindquist v. Freedom of Information

Commission, supra, 203 Conn. App. 525.

As we set forth in part I C of this opinion, we apply

a four part test to determine whether communications
are privileged: ‘‘(1) the attorney must be acting in a

professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications

must relate to the legal advice sought by the agency

from the attorney, and (4) the communications must

be made in confidence.’’ (Footnote omitted; internal

quotation marks omitted.) Shew v. Freedom of Information Commission, supra, 245 Conn. 159.

In considering the first prong of the test, the court

properly determined that, consistent with the commission’s finding, an attorney-client relationship had been

established between LeClairRyan and the common

council and that the common council’s purpose in hiring

LeClairRyan was to ‘‘investigate the complaints and to

provide legal advice.’’ The LeClairRyan attorneys, therefore, were acting in a professional capacity when communicating with city employees.

With respect to the third prong, whether the communications relate to the legal advice sought by the common council, we agree with the court’s conclusion that

the information contained in the documents at issue

were made in furtherance of the investigation and,

therefore, related to the legal advice to be provided.

‘‘Not every communication between attorney and client

falls within the privilege. A communication from attorney to client solely regarding a matter of fact would

not ordinarily be privileged, unless it were shown to

be inextricably linked to the giving of legal advice.’’

Ullmann v. State, supra, 230 Conn. 713. ‘‘[I]t is not

required that the [legal] advice [sought] must pertain

to contemplated or pending litigation. . . . Moreover,

the communication need not expressly seek legal

advice. . . . The privilege merely requires that the client be consulting an attorney for professional advice,

and [a]ny type of legal advice will qualify . . . .’’ (Citations omitted; internal quotation marks omitted.)

Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 13, 826

A.2d 1088 (2003). Furthermore, ‘‘the privilege extends

to the giving of information to the lawyer to enable

counsel to give sound and informed [legal] advice.’’

(Internal quotation marks omitted.) Id., 14. The communications at issue did not expressly ask any legal questions; however, the information conveyed in the communications related to the investigation by LeClairRyan

into the conduct of and allegations against the mayor

and was needed to supply a basis for legal advice concerning any future steps taken by the common council.

See id., 13; Shew v. Freedom of Information Commission, supra, 245 Conn. 160.

We agree, however, with the commission’s contention that it did not make a determination concerning

two of the Shew factors, namely, whether the communications were made between employees of the city and

the LeClairRyan attorneys and whether the communica-
tions were made in confidence. Consequently, we

remand the case for further factual findings by the commission with respect to those questions. See Shew v.

Freedom of Information Commission, supra, 245

Conn. 160–61 (‘‘The commission . . . made no findings

concerning . . . two requirements, namely, whether

the persons interviewed were employees or officials of

the town at the time of the interviews, and whether the

communications were made in confidence. Consequently, a remand for further factual findings by the

commission with regard to these questions is necessary.’’).

Accordingly, the judgment of the court is reversed

with direction to remand the case to the commission

for a determination as to whether, pursuant to § 1-210

(b) (10), the communications at issue were made in

confidence between employees of the city and the

LeClairRyan attorneys.

In Docket No. AC 44284, the judgment is reversed

with respect to the determination that the name of the

clerk of the common council and the dates of interviews

are exempt from disclosure pursuant to § 1-210 (b) (10)

and with respect to the determination that disclosure

of the redacted information would constitute an invasion of personal privacy pursuant to § 1-210 (b) (2) and

the case is remanded with direction to remand the case

to the commission for further proceedings consistent

with this opinion; the judgment is affirmed in all other

respects.

In Docket No. AC 44295, the judgment is reversed

and the case is remanded with direction to remand

the case to the commission for further proceedings

consistent with this opinion.

In this opinion the other judges concurred.

1

In each case, the individuals who requested the unredacted records from

the city, namely, Gerald Daley in Docket No. AC 44284 and Daniel Drew in

Docket No. AC 44295, also were named as defendants.

2 Linda Reed was also a plaintiff in AC 44284. The trial court dismissed

her appeal and she has not appealed from that judgment.

3 General Statutes § 1-214 (b) (1) provides in relevant part: ‘‘Whenever a

public agency receives a request to inspect or copy records contained in

any of its employees’ personnel or medical files and similar files, and the

agency reasonably believes that the disclosure of such records would legally

constitute an invasion of privacy, the agency shall immediately notify in

writing (A) each employee concerned . . . and (B) the collective bargaining

representative, if any, of each employee concerned.’’

4 General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in the

Freedom of Information Act shall be construed to require disclosure of . . .

(2) Personnel or medical files and similar files the disclosure of which would

constitute an invasion of personal privacy . . . .’’

5 General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in the

Freedom of Information Act shall be construed to require disclosure of . . .

(10) . . . communications privileged by the attorney-client relationship

. . . .’’

6 General Statutes § 52-146r (2) provides: ‘‘ ‘Confidential communications’

means all oral and written communications transmitted in confidence

between a public official or employee of a public agency acting in the

performance of his or her duties or within the scope of his or her employment

and a government attorney relating to legal advice sought by the public

agency or a public official or employee of such public agency from that
attorney, and all records prepared by the government attorney in furtherance

of the rendition of such legal advice . . . .’’

7 See Perkins v. Freedom of Information Commission, 228 Conn. 158,

175, 635 A.2d 783 (1993).

8 General Statutes § 1-210 (a) provides in relevant part: ‘‘Except as otherwise provided by any federal law or state statute, all records maintained

or kept on file by any public agency, whether or not such records are

required by any law or by any rule or regulation, shall be public records

and every person shall have the right to (1) inspect such records promptly

during regular office or business hours, (2) copy such records in accordance

with subsection (g) of section 1-212, or (3) receive a copy of such records

in accordance with section 1-212. . . .’’

9 Section 1-210 previously was codified at General Statutes § 1-19.

10 We note that, although the commission also contends that the court

erred in concluding that time and location information was exempt from

disclosure, the information redacted from the invoices consisted only of

names and dates.

11 Giuliano and Bartolotta appealed in their capacity as members of the

common council.

12 In its decision, the court determined that Reed, who was not a member

of the common council, did not have standing to pursue an appeal and

dismissed her claim. Reed has not appealed from the court’s dismissal of

her claim.