Report from attorney's investigator can be withheld in employee discipline case

One of the most important exceptions to Freedom of Information Act’s is a provision that allows public agencies to deny FOI requests for documents that are “communications privileged by the attorney-client relationship.”  See Conn. Gen. Stat. §1-210(b)(10). This issue comes up frequently when employees act improperly and a public agency is confronted with how to investigate and discipline employees.  If the discipline is significant, a freedom of information request is often the first sign that an employee intends to put up a fight.

When an attorney is retained to provide legal advice regarding the discipline, documents that are produced by the attorney for the purpose of providing legal advice are privileged and, as such, can be withheld even if an employee files a freedom of information request asking for every document under the sun.

But what if the attorney hires an investigator to look into employee misconduct? Is that investigator’s report, which may not have been produced by an attorney, privileged and protected from disclosure under the FOIA?

According to a recent Freedom of Information Commission, the answer is yes. If an attorney hires an investigator to assist that attorney in providing legal advice regarding employee discipline, that investigator’s report is privileged and an agency or town is not required to produce that report in response to a FOI request. See Anderson v. Superintendent of Schools, Derby Public Schools, FOIC Docket No. FIC 2009-166 (Mar. 10, 2010).

But what if an agency conducts its own investigation before retaining counsel? In most instances, any reports produced during that investigation would be subject to a FOI request even though an identical report produced by an investigator working for an attorney could be withheld.  As is often the case, the lesson to be learned from Anderson is that public agencies are often better off if they involve counsel in employee discipline matters at the earliest stages.

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