Shew v. Freedom of Information Commission

691 A.2d 29, 44 Conn. App. 611, 12 I.E.R. Cas. (BNA) 1295, 1997 Conn. App. LEXIS 114
CourtConnecticut Appellate Court
DecidedApril 1, 1997
Docket15279
StatusPublished
Cited by13 cases

This text of 691 A.2d 29 (Shew v. Freedom of Information Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shew v. Freedom of Information Commission, 691 A.2d 29, 44 Conn. App. 611, 12 I.E.R. Cas. (BNA) 1295, 1997 Conn. App. LEXIS 114 (Colo. Ct. App. 1997).

Opinion

LANDAU, J.

This is an appeal from the judgment of the trial court in favor of the plaintiff, O. Paul Shew, reversing the decision of the defendant freedom of information commission (commission) ordering the plaintiff to provide access to certain documents.1 On [613]*613appeal, the commission2 claims that the trial court improperly (1) substituted its judgment for that of the administrative agency, (2) concluded that the attorney-client privilege barred disclosure of certain documents and (3) concluded that the requested documents were not required to be disclosed pursuant to General Statutes § 1-19 (c) (l).3 We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff was the town manager of the town of Rocky Hill.4 From December, 1991, to June, 1992, he conducted an investigation of the town’s police chief, Philip Schnabel, to determine whether the chiefs employment with the town should be terminated. To assist in the investigation, he hired attorneys Felix Springer and Elaine Stuhlman. Springer concentrated on reviewing the trial transcript and evidence in a civil tort case; see Schnabel v. Tyler, 32 Conn. App. 704, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994);5 because the jury verdict in that case raised serious concerns about whether Schnabel had abused the authority of his office. Stuhlman concentrated on interviewing town employ[614]*614ees and other persons to determine whether there may have been evidence outside the trial record that Schnabel had abused his authority. Stuhlman also gave the town manager legal advice related to her findings. The town manager hired Springer and Stuhlman in an effort to avoid legal complications and because he thought that General Statutes § 7-278, which provides statutory protection to police chiefs, necessitated legal counsel.

From January to April, 1992, Stuhlman conducted interviews, prepared draft summaries of the interviews and prepared affidavits and a preliminary draft report based on the interviews. In April, 1992, Stuhlman forwarded summaries of the interviews together with affidavits to Springer. In June, 1992, Springer forwarded a report documenting Schnabel’s actions to the town manager.

In December, 1993, the defendant Edward A. Peruta requested from the town manager access to all statements “created and/or collected as part of an investigation that resulted in the termination of former Rocky Hill police Chief Schnabel.” Specifically, Peruta sought access to Stuhlman’s documents. The town manager denied Peruta’s request, claiming that the requested documents were protected from disclosure by the attorney-client privilege. Peruta filed a complaint with the commission challenging the town manager’s denial of access to those documents.

Following a hearing and in camera review of the challenged documents, the commission found that the documents were public records. It found that Stuhlman’s documents were not exempt from disclosure under General Statutes § 1-19 (b) (1) as “preliminary drafts or notes” and that the documents were not protected by the attorney-client privilege pursuant to § 1-19 (b) (10). The commission ordered the town manager to make the documents available to Peruta in accord[615]*615anee with § 1-19 (a). The commission’s decision regarding the “preliminary drafts or notes” exception was based on its interpretation of the statutory language to mean only documents that are used in the creation of some subsequent finished document. It found that the Stuhlman documents were essentially products themselves, not “preliminary” to anything developed from them and, therefore, were not exempt. The commission also rejected the claimed attorney-client privilege, finding that Stuhlman was neither hired nor acting as an attorney for the plaintiff, but was acting as “an investigator with legal credentials.”

The town manager appealed to the trial court pursuant to General Statutes § 4-183, claiming that the Stuhlman documents were protected against disclosure by the attorney-client privilege and exempt under § 1-19 (b) (10) and were “preliminary drafts or notes” and exempt under § 1-19 (b) (1).

The trial court held that the commission improperly found that the attorney-client privilege did not exist. It also disagreed with the commission’s conclusion that the privilege should not prevent disclosure of the Stuhlman documents because they are not the kind of communication that the privilege protects. While the trial court found impropriety in the commission’s finding that the privilege did not apply to the communications in question, it also found that the commission failed to make further findings concerning the criteria set out in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Therefore, the trial court remanded the case to the commission for that purpose.

The trial court also found that the commission’s conclusion that the documents in question were not preliminary drafts or notes within the meaning of § 1-19 (b) (1) was improper. The trial court remanded the case to the commission to make findings, as required by § 1-[616]*61619 (b) (1), as to whether the town manager properly determined that the public interest in withholding the documents outweighed the public interest in their disclosure.

I

The commission first claims that the trial court failed to exercise appropriate judicial restraint in applying the suitable standard of judicial review set forth in General Statutes § 4-183 (j)6 when it sustained the administrative appeal regarding the factual issue of whether Stuhlman was acting as an attorney or investigator. The commission argues that, because its action was supported by substantial and competent evidence on the whole record, the trial court should have upheld its decision. The town manager asserts, however, that the trial court’s review was proper because the commission’s decision was clearly erroneous in view of the lack of substantial and probative evidence in the record.

“Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the [617]*617evidence, 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. . . . [Id., 774.] Although the interpretation of statutes is ultimately a question of law ...

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Cite This Page — Counsel Stack

Bluebook (online)
691 A.2d 29, 44 Conn. App. 611, 12 I.E.R. Cas. (BNA) 1295, 1997 Conn. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shew-v-freedom-of-information-commission-connappct-1997.