Avon v. Sastre

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TOWN OF AVON ET AL. v.
JOSEPH SASTRE ET AL.
(AC 45885)
Elgo, Cradle and Seeley, Js.

Syllabus

Pursuant to statute (§ 1-200 (5)), ‘‘ ‘[p]ublic records or files’ means any
recorded data or information relating to the conduct of the public’s
business prepared, owned, used, received or retained by a public
agency . . . .’’
Pursuant further to statute (§ 1-210 (b)), ‘‘[n]othing in the Freedom of Infor-
mation Act shall be construed to require disclosure of . . . communica-
tions privileged by the attorney-client relationship . . . .’’
The plaintiffs, the town of Avon and its town manager, B, appealed from
the judgment of the trial court dismissing their administrative appeal
from the final decision of the defendant Freedom of Information Com-
mission ordering the plaintiffs to disclose certain information to the
defendant S pursuant to the Freedom of Information Act (§ 1-200 et
seq.). A managerial level town employee met with B to seek his guidance
on how to handle certain work-related incidents and events involving
the town’s chief of police, R, that the employee had observed. Following
that meeting, B contacted the town’s attorney, who asked whether the
employee had any documentation of those incidents. B subsequently
contacted the employee, who confirmed that he had created a log detail-
ing incidents occurring over the course of more than one year. The
employee provided the log to B, who made a copy of the log, provided
the copy to the town attorney, and returned the log to the employee.
Pursuant to a memorandum from the town, R was placed on administra-
tive leave, pending an investigation. Sometime thereafter, the town and
R executed a severance agreement, and R retired from his position as
chief of police. A few months later, S submitted a request that the
town provide him with any and all records relating to the accusations
concerning R. In response to this request, the plaintiffs provided S
with a copy of the memorandum placing R on leave and the severance
agreement; however, neither document included the reason behind the
decision to place R on administrative leave, and the plaintiffs did not
provide S with a copy of the log that had been given by the town
employee to B documenting that employee’s observations of R’s conduct.
S filed an appeal with the commission alleging that the plaintiffs had
violated the act by failing to provide him with the log. During the hearing
on S’s complaint before a hearing officer for the commission, the plain-
tiffs’ sole argument in opposition to S’s request was that the log was
exempt from disclosure due to the attorney-client privilege pursuant to
§ 1-210 (b). After the hearing officer issued her proposed final decision,
finding that the log was not exempt from disclosure under the attorney-
client privilege, the town responded to the proposed decision and, in
addition to maintaining its argument that the log was protected from
disclosure under the attorney-client privilege, also argued that the log
was not a public record under the act because it consisted of the personal
notes of an individual. In its final decision, the commission found that
the log was a public record within the meaning of the act and concluded
that the log was not a document protected by the attorney-client privi-
lege, and, thus, it was not exempt from disclosure under the act. The
commission therefore ordered that the log be disclosed to S. The plain-
tiffs filed an administrative appeal with the trial court, which, after a
hearing, issued a memorandum of decision in which it agreed with the
decision of the commission and dismissed the plaintiffs’ administrative
appeal. On appeal to this court, the plaintiffs argued, inter alia, that the
commission erred by not considering or applying the four part test for
determining whether a communication between a public employee and
an attorney is privileged set forth in Shew v. Freedom of Information
Commission (245 Conn. 149), which provides that communications to
an attorney for a public agency are protected from disclosure by privilege
if the attorney is acting in a professional capacity for the agency, the
communications are made to the attorney by current employees or
officials of the agency, the communications relate to the legal advice
sought by the agency from the attorney, and the communications are
made in confidence. The commission, in turn, argued that the commis-
sion properly determined that the plaintiffs failed to demonstrate one
of the three criteria set forth in State v. Kosuda-Bigazzi (335 Conn.
327) for establishing that a document is privileged, either by showing that
the document is itself the record or memorialization of a communication
between the client and the attorney, that the document was created
with the intent to communicate the contents to an attorney and the
client actually communicated the contents to the attorney, or that a
preexisting document has been transformed into a communication for
the purpose of seeking legal advice and that the document was communi-
cated to or intended to be communicated to an attorney. Held:
1. The plaintiffs could not prevail on their claim that the trial court erred
in concluding that the log was a public record pursuant to the act:
a. Contrary to the plaintiffs’ claim, this court concluded that the log
included information relating to the conduct of the public’s business
under § 1-200 (5): there was no doubt that the public has an interest in
the conduct of police, as public employees, and a log detailing concerns
about the work-related conduct of the town’s chief of police implicated
the public’s business and concern; moreover, § 1-200 must be construed
in light of the overall purpose of the act, which favors disclosure of
government records; furthermore, B conceded in his hearing testimony
that the revelations in the log about the conduct of R were crucial to
the decision to place him on leave, and the fact that the log triggered
such an action, particularly against a high-level town official whose job
involved public safety, supported the conclusion that the log included
information relating to the conduct of the public’s business, as the con-
tents of the log provided a basis for understanding the town’s investiga-
tive process, its decision making and its overall handling of R’s employ-
ment, which eventually resulted in his resignation and a subsequent
severance agreement between R and the town.
b. The plaintiffs could not prevail on their claim that the log was not
prepared, owned, used, received or retained by a public agency under
§ 1-200 (5), this court having concluded that the log was received by the
town, which was dispositive of whether the log was a public record: it
was undisputed that the employee, at the town attorney’s request, gave
the log to B, and, in light of the ordinary meaning of the word ‘‘receive,’’
this court concluded that, when B took possession of the log, the town
received the log for purposes of § 1-200 (5); moreover, the plaintiffs
provided no authority for their argument that ‘‘received’’ under the statute
means that the document must be given to a public agency for the
agency’s retention, and, in fact, such a reading of the statute would be
redundant, as the statute includes whether a document was retained by
a public agency as a separate ground for finding that it is a public
record, and statutes shall be interpreted, whenever possible, to avoid
redundancy; furthermore, the plaintiffs’ argument that the log was not
received by the town because B merely served as a conduit to deliver
the log to the town attorney was unavailing, as the plaintiffs cited no
authority in their appellate briefs for this assertion, the town attorney
in this case was an agent of the town, and towns cannot be permitted
to circumvent their statutory obligations relating to the disclosure of
public records by simply delivering the records to their attorney.
2. Contrary to the plaintiffs’ claim, the commission did not act unreasonably,
arbitrarily, illegally or in abuse of its discretion in concluding that the
log was not exempt from disclosure under the act pursuant to the
attorney-client privilege: on the basis of a thorough review of the record,
including an in camera review of the log, this court concluded that
the record contained substantial evidence to support the commission’s
findings that the log contained personal observations of the employee
relating to the conduct of R, the employee created the log for his own
personal use, the log was not created for the purpose of seeking legal
advice or with the intent to communicate its contents to an attorney, the
employee met with B, who is not an attorney, to discuss the employee’s
concerns about R’s conduct and to seek guidance on how to deal with
R regarding the incidents that the employee had observed, and the log
did not constitute a record of communication between a client and an
attorney, as there was no evidence in the record showing that the
employee who created the log ever spoke with the town attorney, and,
because those findings related to the second and third parts of the test
in Shew, the trial court, in effect, applied the test in Shew when it
analyzed the plaintiffs’ claim of attorney-client privilege; moreover, those
findings supported a conclusion that the plaintiffs failed to meet their
burden of establishing that the log was exempt from disclosure under
the attorney-client privilege, either under the test in Shew or the first
two of the three ways to establish the attorney-client privilege with
regard to documents as set forth in Kosuda-Bigazzi; furthermore, the
commission’s finding that the log was a preexisting document, in that
it was in existence before B sought legal advice from the town attorney,
was also supported by the substantial evidence in the record concerning
the log, demonstrating that it was not a record of a communication
and was not created for the purpose of seeking legal advice, and the
commission specifically found that the employee did not later create a
typed compilation and/or summary of the log for the purpose of securing
counsel, and therefore there was no evidence in the record demonstra-
ting a transformation of the log for the purpose of seeking legal counsel;
additionally, although the plaintiffs argued that the log was provided to
the town attorney solely for the purpose of seeking legal advice, this
argument ignored the fact that the legal advice sought was for the town,
not the person who created the log, and the log did not become a
privileged document simply because B provided the log to the town
attorney when he sought legal advice about how the town should proceed
with respect to R.
Argued October 19, 2023—officially released March 5, 2024

Procedural History

Appeal from a decision by the defendant Freedom
of Information Commission ordering the plaintiffs to
disclose certain information to the named defendant,
brought to the Superior Court in the judicial district of
New Britain and tried to the court, Cordani, J.; judg-
ment dismissing the appeal, from which the plaintiffs
appealed to this court. Affirmed.
Michael C. Harrington, with whom, on the brief, was
Proloy K. Das, for the appellants (plaintiffs).
Jennifer F. Miller, commission counsel, with whom,
on the brief, were Danielle L. McGee, commission coun-
sel, and Colleen M. Murphy, general counsel, for the
appellee (defendant Freedom of Information Commis-
sion).
Elana Bildner, with whom, on the brief, were Sapana
Anand and Dan Barrett, for the appellee (named defen-
dant).
Opinion

SEELEY, J. The plaintiffs, the town of Avon (town)
and the town manager, Brandon Robertson, appeal from
the judgment of the Superior Court dismissing their
administrative appeal from the final decision of the
defendant Freedom of Information Commission (com-
mission) regarding a complaint filed by the defendant
Joseph Sastre. In its final decision, the commission
found that the plaintiffs had violated the Freedom of
Information Act (act), General Statutes § 1-200 et seq.,
when they denied Sastre’s request for a document (log)
related to the resignation in 2019 of the town’s police
chief, Mark Rinaldo (Chief Rinaldo), and ordered that
the town disclose the log pursuant to the act. On appeal,
the plaintiffs claim that the court improperly dismissed
their appeal from the commission’s decision ordering
disclosure of the log because (1) the log is not a public
record under § 1-200 (5)1 and, thus, is not subject to
disclosure under the act, and (2) even if the log is a
public record, it is exempt from disclosure under Gen-
eral Statutes § 1-210 (b) (10)2 pursuant to the attorney-
client privilege. We disagree with the plaintiffs and
affirm the judgment of the Superior Court.
The following facts, as found by the commission and
which are not disputed by the parties, and procedural
history are relevant to our resolution of this appeal. In
November, 2019, a managerial level ‘‘town employee
met with the . . . town manager to discuss [work-
related] incidents and events involving Chief Rinaldo.
. . . [T]he employee was seeking the . . . town man-
ager’s guidance on how to deal with [Chief Rinaldo]
regarding [certain] incidents [involving Chief Rinaldo]
that the employee had observed.’’ Following that meet-
ing, the town manager contacted the attorney for the
town (town attorney) and described the incidents men-
tioned by the employee. During that conversation, the
town attorney asked whether the employee had any
documentation of those incidents. The town manager
then contacted the employee, at which time he ‘‘learned
that the employee had created a log3 detailing the under-
lying incidents. . . . [T]he log details incidents
occurring over the course of one year, four months
and five days (June 20, 2018, to October 25, 2019).’’
(Footnote added.) As a result of that conversation, ‘‘the
employee provided the log to the . . . town manager,
who made a copy of the log, provided the copy to the
town [attorney], and returned the log to the employee.’’
As documented in a memorandum dated November 11,
2019, Chief Rinaldo was placed on administrative leave,
pending an investigation. Sometime thereafter, the town
and Chief Rinaldo executed a severance agreement,
and Chief Rinaldo retired from his position as chief
of police.
On February 10, 2020, Sastre submitted a request that
the town ‘‘provide him with any and all records relating
to the ‘accusations’ concerning . . . [Chief] Rinaldo.’’
In response to this request, the plaintiffs provided Sas-
tre with a copy of the November 11, 2019 memorandum
and the severance agreement; however, neither docu-
ment included the reason behind the decision to place
Chief Rinaldo on administrative leave. The plaintiffs did
not provide Sastre with a copy of the log that had
been given by the town employee to the town manager
documenting that employee’s observations of Chief
Rinaldo’s conduct.
On March 13, 2020, Sastre filed an appeal with the
commission, alleging that the plaintiffs violated the act
by failing to provide him with the aforementioned log.
On November 19, 2020, a hearing concerning Sastre’s
appeal was conducted before a hearing officer for the
commission, at which Sastre and the plaintiffs ‘‘appeared,
stipulated to certain facts, and presented testimony,
exhibits and argument on the complaint.’’ During the
hearing, the plaintiffs’ sole argument in opposition to
Sastre’s request was that the log was exempt from dis-
closure due to the attorney-client privilege. On Septem-
ber 22, 2021, the hearing officer issued her proposed
final decision, finding that the log was not exempt from
disclosure under the attorney-client privilege. On Octo-
ber 15, 2021, the town responded to the proposed deci-
sion. In its response, the town, in addition to main-
taining its argument that the log is protected from
disclosure under the attorney-client privilege, also
argued that the log is not a public record because it
consists of the personal notes of an individual.
On October 27, 2021, the commission held a meeting
at which it reviewed the hearing officer’s proposed deci-
sion. During the meeting, the town attorney reiterated
the argument that the log was exempt from disclosure
due to the attorney-client privilege and also argued that
the log did not qualify as a public record as defined by
the act. On November 17, 2021, the commission issued
its final decision on the matter. The commission first
found that the log is a public record within the meaning
of General Statutes §§ 1-200 (5), 1-210 (a) and 1-212 (a).
The commission next addressed the plaintiffs’ claim
that the log is exempt from disclosure under § 1-210
(b) (10), which exempts from disclosure records of
‘‘communications privileged by the attorney-client rela-
tionship . . . .’’ The commission concluded that the
log is not a document protected by the attorney-client
privilege and, thus, it is not exempt from disclosure
under § 1-210 (b) (10). Therefore, the commission
ordered that it be disclosed to Sastre.
After the commission issued its decision, the plain-
tiffs filed an administrative appeal in the Superior Court
pursuant to General Statutes § 4-183. Sastre and the
commission were both named as defendants in the
appeal. A hearing was held on September 19, 2022.
On September 20, 2022, the Superior Court issued a
memorandum of decision in which it agreed with the
decision of the commission that the log is a public
record subject to disclosure under the act and, there-
fore, dismissed the plaintiffs’ administrative appeal.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
As a preliminary matter, we must first set forth the
standard of review for this administrative appeal. ‘‘Our
resolution of [this appeal] is guided by the limited scope
of judicial review afforded by the Uniform Administra-
tive Procedure Act [UAPA]; General Statutes § 4-166 et
seq.; to the determinations made by an administrative
agency.’’ (Internal quotation marks omitted.) Rocque v.
Freedom of Information Commission, 255 Conn. 651,
658, 774 A.2d 957 (2001). ‘‘Under the UAPA, it is [not]
the function . . . of [an appellate] court to retry the
case or to substitute its judgment for that of the adminis-
trative agency. . . . Even for conclusions 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. . . .
[Thus] [c]onclusions of law reached by the administra-
tive 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. . . . Cases that present pure questions
of law, however, invoke a broader standard of review
than is . . . involved in deciding whether, in light of
the evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion.’’ (Internal
quotation marks omitted.) Commissioner of Emer-
gency Services & Public Protection v. Freedom of Infor-
mation Commission, 330 Conn. 372, 379, 194 A.3d
759 (2018).
‘‘The ‘substantial evidence’ rule governs judicial review
of administrative fact-finding under the UAPA.’’ Dolgner
v. Alander, 237 Conn. 272, 281, 676 A.2d 865 (1996).
‘‘According to our well established standards, [r]eview
of an administrative agency decision requires a court
to determine whether there is substantial evidence in
the administrative record to support the agency’s find-
ings of basic fact and whether the conclusions drawn
from those facts are reasonable. . . . Neither this court
nor the trial court may retry the case or substitute its
own judgment for that of the administrative agency on
the weight of the evidence or questions of fact. . . .
An administrative finding is supported by substantial
evidence if the record affords a substantial basis of fact
from which the fact in issue can be reasonably inferred.’’
(Citations omitted; internal quotation marks omitted.)
Stratford Police Dept. v. Board of Firearms Permit
Examiners, 343 Conn. 62, 81, 272 A.3d 639 (2022).
I
The plaintiffs first claim that the court improperly
dismissed their administrative appeal from the commis-
sion’s decision ordering disclosure of the log because
the log is not a public record under § 1-200 (5).4 In
support of this claim, the plaintiffs argue that the log
does not meet the statutory definition of a public record
because it was not ‘‘prepared, owned, used, received
or retained by a public agency . . . .’’ General Statutes
§ 1-200 (5).5 We are not persuaded.
The following legal principles are relevant to our
evaluation of this claim. Our Supreme Court has
described the act as ‘‘our right-to-know law, providing
for disclosure of public information . . . . [T]he [act]
expresses a strong legislative policy in favor of the
open conduct of government and free public access to
government records. . . . At the time of its unanimous
passage by the General Assembly, the act was noted
for making sweeping changes in the existing right to
know law so as to mark a new era in Connecticut
with respect to opening up the doors of city and state
government to the people of Connecticut. . . . The
general rule under the act is disclosure.’’ (Citation omit-
ted; internal quotation marks omitted.) Groton Police
Dept. v. Freedom of Information Commission, 104
Conn. App. 150, 154–55, 931 A.2d 989 (2007); see also
Chairman v. Freedom of Information Commission,
217 Conn. 193, 196, 585 A.2d 96 (1991) (act ‘‘ ‘makes
disclosure of public records the statutory norm’ ’’);
Board of Trustees v. Freedom of Information Commis-
sion, 181 Conn. 544, 550, 436 A.2d 266 (1980) (noting
that representative who sponsored bill that was enacted
‘‘expressly stated on the floor of the house, the intent
of the act ‘is to make every public record and every
public meeting open to the public at all times with
certain specified exclusions’ ’’). ‘‘The [commission] has
full authority to determine the existence of public
records and the propriety of their disclosure.’’ Board
of Education v. Freedom of Information Commission,
208 Conn. 442, 454, 545 A.2d 1064 (1988). In determining
whether the log is a public record under the act, we must
be ‘‘mindful that the purpose of the act is to balance
the public’s right to know what its agencies are doing,
with the governmental and private needs for confidenti-
ality. . . . [I]t is this balance of the governmental and
private needs for confidentiality with the public right
to know that must govern the interpretation and appli-
cation of the [act].’’ (Internal quotation marks omitted.)
Commissioner of Emergency Services & Public Protec-
tion v. Freedom of Information Commission, supra,
330 Conn. 398.
Whether the log is a public record under § 1-200 (5)
of the act involves a matter of statutory interpretation6
and ‘‘presents a question of law over which [an appellate
court] exercise[s] plenary review.’’ Id., 399. ‘‘When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation.’’ (Internal quotation marks omitted.)
Bridgeport v. Freedom of Information Commission,
222 Conn. App. 17, 48, 304 A.3d 481 (2023), cert. denied,
348 Conn. 936, 306 A.3d 1072 (2024).
We start with the language of § 1-200 (5). Section 1-
200 (5) defines a public record as ‘‘any recorded data
or information relating to the conduct of the public’s
business prepared, owned, used, received or retained
by a public agency . . . .’’ (Emphasis added.) Thus,
pursuant to the statute, a document is a public record
if it (1) relates ‘‘to the conduct of the public’s business’’
and (2) was ‘‘prepared, owned, used, received or
retained by a public agency . . . .’’ (Emphasis added.)
General Statutes § 1-200 (5). Because the statute is in
the disjunctive, only one of the aforementioned five
grounds must be shown in order to demonstrate that
the log is a public record. See, e.g., In re Annessa J.,
343 Conn. 642, 677, 284 A.3d 562 (2022) (‘‘ ‘use of the
disjunctive ‘‘or’’ between the two parts of the statute
indicates a clear legislative intent of separability’ ’’).
A
We first note that for the log to constitute a public
record, it must relate to the conduct of the public’s
business.7 Section 1-200 (5) does not define what consti-
tutes the ‘‘conduct of the public’s business’’ under the
act. ‘‘[I]n the absence of a definition of terms in the
statute itself, [w]e may presume . . . that the legisla-
ture intended [a word] to have its ordinary meaning in
the English language, as gleaned from the context of
its use. . . . Under such circumstances, it is appro-
priate to look to the common understanding of the term
as expressed in a dictionary.’’ (Internal quotation marks
omitted.) Braasch v. Freedom of Information Commis-
sion, 218 Conn. App. 488, 510, 292 A.3d 711 (2023); see
also General Statutes § 1-1 (a) (‘‘[i]n the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage’’). The word ‘‘public’’ is defined by Merriam-Web-
ster’s Collegiate Dictionary as ‘‘of, relating to, or affect-
ing all the people or the whole area of a nation or state
. . . of or relating to government . . . [or] of, relating
to, or being in the service of the community or nation
. . . .’’ Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2014) p. 1005; see also The American Heritage Dic-
tionary (5th Ed. 2011) p. 1424 (defining ‘‘public’’ as ‘‘[o]f,
concerning, or affecting the community or the people’’).
‘‘Business’’ is defined, in part, as ‘‘[o]ne’s rightful or
proper concern or interest’’; The American Heritage
Dictionary, supra, p. 252; and ‘‘conduct’’ means ‘‘the
act, manner, or process of carrying on . . . [or] a mode
or standard of personal behavior . . . .’’ Merriam-Web-
ster’s Collegiate Dictionary, supra, p. 259. Construed
together, the ‘‘conduct of the public’s business’’ refers
to an action or behavior that is of concern to the mem-
bers of the community as a whole.
As we stated, the log details the concerns of a town
employee regarding the work-related conduct of the
chief of police. Our Supreme Court has made clear that
‘‘when a person accepts public employment, he or she
becomes a servant of and accountable to the public.
. . . The public has a right to know not only who their
public employees are, but also when their public
employees are and are not performing their duties.’’
Perkins v. Freedom of Information Commission, 228
Conn. 158, 177, 635 A.2d 783 (1993). The conduct of
the police, in particular, has been deemed a matter of
public concern by our Supreme Court. See Hartford v.
Freedom of Information Commission, 201 Conn. 421,
435, 518 A.2d 49 (1986) (‘‘the public has a legitimate
interest in the integrity of local police departments and
in disclosure of how such departments investigate and
evaluate . . . complaints of police misconduct’’).
Documents do not have to be created by a public
agency to relate to the conduct of the public’s business.
See Commissioner of Emergency Services & Public
Protection v. Freedom of Information Commission,
supra, 330 Conn. 398. For example, our Supreme Court
recently addressed a claim that certain documents were
not public records under the act ‘‘because they were
created by a private individual and not the [Department
of Emergency Services and Public Protection].’’ Id., 397.
In rejecting that argument, the court explained: ‘‘[D]ocu-
ments that are not created by an agency, but come into
its possession because there was probable cause to
believe that they constitute ‘evidence of an offense, or
. . . evidence that a particular person participated in
the commission of an offense,’ relate to the conduct of
the public’s business.’’ Id., 398. Similarly, in the present
case, although the log was created by the employee, it
came into the town’s possession when the employee
provided it to the town manager, who, in turn, provided
it to the town attorney, and its contents were instrumen-
tal in Chief Rinaldo being placed on administrative
leave.
We also find guidance on this issue from case law
concerning the invasion of privacy exemption to disclo-
sure of public records, which ‘‘precludes disclosure
. . . when the information sought by a request does
not pertain to legitimate matters of public concern
. . . .’’ Perkins v. Freedom of Information Commis-
sion, supra, 228 Conn. 175. In that context, our Supreme
Court has stated that ‘‘[t]he legislature has . . . deter-
mined that disclosures relating to the employees of
public agencies are presumptively legitimate matters
of public concern . . . [although] [t]hat presumption
is not . . . conclusive.’’ Id., 174. Moreover, as we
stated, ‘‘the public has a legitimate interest in the integ-
rity of local police departments’’ and how they ‘‘investi-
gate and evaluate . . . complaints of police miscon-
duct.’’ Hartford v. Freedom of Information Commission,
supra, 201 Conn. 435. For instance, this court previously
held that a document containing the instant messages
of a police officer, which were the trigger for an investi-
gation into whether the officer was responsible for mis-
conduct, ‘‘pertained to a legitimate matter of public
concern . . . [because] [the messages] contain[ed] the
information which formed the basis for and triggered
the . . . investigation in this case. Therefore . . . dis-
closure of the instant message conversations was neces-
sary to facilitate the public’s understanding and evalua-
tion of the [department’s] investigative process,
decision-making and overall handling of an important
matter involving a fellow police officer.’’ (Internal quo-
tation marks omitted.) Tompkins v. Freedom of Infor-
mation Commission, 136 Conn. App. 496, 508–509, 46
A.3d 291 (2012).
In the present case, we conclude, following our own
in camera review of the log and our review of the com-
mission’s findings, which are not disputed by the par-
ties, that the log includes ‘‘information relating to the
conduct of the public’s business . . . .’’ General Stat-
utes § 1-200 (5). First, there can be no doubt that the
public has an interest in the conduct of police, as public
employees, and a log detailing concerns about the work-
related conduct of the town’s chief of police certainly
implicates the public’s business and concern. In addi-
tion to the public’s right to know whether its public
servants are engaging in misconduct, we must construe
the statute in light of the overall purpose of the act,
which favors disclosure. See Clerk of the Common
Council v. Freedom of Information Commission, 215
Conn. App. 404, 413, 283 A.3d 1 (2022) (‘‘[t]he overarch-
ing legislative policy of [the act] is one that favors the
open conduct of government and free public access to
government records’’ (internal quotation marks omit-
ted)); see also Harrington v. Freedom of Information
Commission, 323 Conn. 1, 13, 144 A.3d 405 (2016) (‘‘the
general rule under the [act] is disclosure’’ (internal quo-
tation marks omitted)).
Our determination is also supported by the hearing
testimony of the town manager, who confirmed that he
was given the log by the town employee and that it
contains revelations about the conduct of Chief Rinaldo,
the town’s highest ranking police official. The employee
had documented his concerns about Chief Rinaldo’s
conduct for more than one year and eventually sought
the advice of the town manager, which prompted an
investigation into the potential misconduct of Chief
Rinaldo. The town manager conceded in his hearing
testimony that the revelations in the log about the con-
duct of Chief Rinaldo were crucial to the decision to
place him on leave. The fact that the log triggered such
an action, particularly against a high-level town official
whose job involves public safety, supports our conclu-
sion that the log includes information relating to the
conduct of the public’s business, as the contents of
the log provide a basis for understanding the town’s
investigative process, its decision making and its overall
handling of Chief Rinaldo’s employment, which eventu-
ally resulted in his resignation and a subsequent sever-
ance agreement between Chief Rinaldo and the town.
B
Having determined that the contents of the log relate
to the conduct of the public’s business, we next address
whether the log was ‘‘prepared, owned, used, received
or retained by a public agency . . . .’’ General Statutes
§ 1-200 (5). Although the plaintiffs make arguments
regarding all five grounds on appeal, we first address
whether the log was received by the town, which, if
found, will be dispositive of whether the log is a public
record and obviate any need to address the other
grounds. In support of their claim that the log was not
received by the town, the plaintiffs assert that ‘‘received’’
under the statute means that the document must be
‘‘given to a public agency for the agency’s retention’’
and that the log was not received by the town because
the town manager merely served as a ‘‘conduit’’ to
deliver the log to the town attorney. We do not agree
with either of these arguments.
We first note that the act does not define the word
‘‘receive’’ for purposes of § 1-200 (5). As we stated pre-
viously in this opinion, ‘‘[i]n the absence of a definition
of terms in the statute itself, [w]e may presume . . .
that the legislature intended [a word] to have its ordi-
nary meaning in the English language, as gleaned from
the context of its use. . . . Under such circumstances,
it is appropriate to look to the common understanding
of the term as expressed in a dictionary.’’ (Internal
quotation marks omitted.) Braasch v. Freedom of Infor-
mation Commission, supra, 218 Conn. App. 510; see
also General Statutes § 1-1 (a) (‘‘[i]n the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage’’). The word ‘‘receive’’ is defined as ‘‘to come
into possession of: acquire . . . .’’ Merriam-Webster’s
Collegiate Dictionary, supra, p. 1038. It is also defined
as ‘‘to have delivered or brought to one . . . .’’ The
Random House Dictionary of the English Language (2d
Ed. 1987) p. 1610. Applying those definitions to the
statutory language, we conclude that ‘‘any recorded
data or information relating to the conduct of the pub-
lic’s business . . . received . . . by a public agency’’
in § 1-200 (5) necessarily includes a document that has
come into the possession of a public agency.
The commission made the following relevant findings
in its decision, which support a determination that the
log was received by the town for purposes of the act.
After the town manager was made aware of the employ-
ee’s log, the town manager told the employee that the
town attorney wanted to review the log. As a result of
that request, the employee gave the log directly to the
town manager, who made a copy of it; the town manager
then gave the copy to the town attorney and returned
the original log to the employee. It is thus undisputed
that the employee, at the town attorney’s request, gave
the log to the town manager. In light of the ordinary
meaning of the word ‘‘receive,’’ we conclude that when
the town manager took possession of the log, the town
‘‘received’’ the log for purposes of the statute.
The plaintiffs have provided no authority for their
argument that ‘‘received’’ under the statute means that
the document must be ‘‘given to a public agency for
the agency’s retention.’’ Such a reading of the statute
would be redundant, as the statute includes whether a
document was ‘‘retained’’ by the public agency as a
separate ground for finding that it is a public record.
It is a principle of statutory interpretation that statutes
shall be interpreted, whenever possible, to avoid redun-
dancy. See Yeager v. Alvarez, 134 Conn. App. 112, 121–
22, 38 A.3d 1224 (2012) (‘‘It is a basic tenet of statutory
construction that the legislature [does] not intend to
enact meaningless provisions. . . . Because [e]very
word and phrase [of a statute] is presumed to have
meaning . . . [a statute] must be construed, if possible,
such that no clause, sentence or word shall be superflu-
ous, void or insignificant.’’ (Citation omitted; internal
quotation marks omitted.)).
The plaintiffs’ argument that the log was not received
by the town because the town manager merely served
as a ‘‘conduit’’ to deliver the log to the town attorney
is equally unavailing. Again, the plaintiffs cite no author-
ity in their appellate briefs for this assertion. The town
attorney in this case is an agent of the town. See, e.g.,
First Selectman v. Freedom of Information Commis-
sion, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (November 28, 2000) (29
Conn. L. Rptr. 27, 29) (holding that transcripts prepared
by stenographer and delivered directly to town’s attor-
ney, and not town, were public records because ‘‘[t]he
transcripts . . . were received and used by the
[t]own’s attorney as the [t]own’s agent’’); see generally
National Groups, LLC v. Nardi, 145 Conn. App. 189,
201, 75 A.3d 68 (2013) (noting that ‘‘[a]n attorney is the
client’s agent’’). Furthermore, towns cannot be permit-
ted ‘‘to circumvent their statutory obligations relating
to disclosure of ‘public records’ by simply delivering
the records to their attorney.’’ First Selectman v. Free-
dom of Information Commission, supra, 29. Accord-
ingly, the fact that the town manager provided the log
to the town attorney does not change the fact that the
town ‘‘received’’ the log for purposes of the act.
Therefore, because the log relates to the conduct of
the public’s business and was received by the town,
the commission correctly determined that the log con-
stitutes a public record under § 1-200 (5) of the act.
II
The plaintiffs next argue that, even if the log consti-
tutes a public record for purposes of the act, it is exempt
from disclosure pursuant to the attorney-client privilege
under § 1-210 (b) (10) because it was given to the town
attorney ‘‘for the sole purpose of providing legal
advice.’’ We do not agree.
The following legal principles guide our analysis of
this claim. Section 1-210 (b) (10) exempts from disclo-
sure ‘‘communications privileged by the attorney-client
relationship . . . .’’ Our Supreme Court recently
explained the parameters of the attorney-client privi-
lege, stating: ‘‘Where legal advice of any kind is sought
from a professional legal adviser in his capacity as such,
the communications relating to that purpose, made in
confidence by the client, are at his instance permanently
protected from disclosure by himself or by the legal
adviser, except the protection be waived. . . . In Con-
necticut, the attorney-client privilege protects both the
confidential giving of professional advice by an attorney
acting in the capacity of a legal advisor to those who
can act on it, as well as the giving of information to
the lawyer to enable counsel to give sound and informed
advice. . . . The privilege fosters full and frank com-
munications between attorneys and their clients and
thereby promote[s] the broader public interests in the
observation of law and [the] administration of justice.
. . . The privilege applies, however, only when neces-
sary to achieve its purpose; it is not a blanket privi-
lege. . . .
‘‘The attorney-client privilege applies to oral and writ-
ten communications. See, e.g., E. Prescott, Tait’s Hand-
book of Connecticut Evidence (6th Ed. 2019) § 5.16.1
(b), p. 262 ([c]ommunications between an attorney and
a client can be written as well as oral); see also 1
Restatement (Third), The Law Governing Lawyers § 69,
comment (b), p. 525 (2000) (A communication can be
in any form. Most confidential client communications
to a lawyer are written or spoken words . . . .). The
present case involves documents, and our analysis will
focus on that form of communication. The privilege
must be established for each document separately con-
sidered and must be narrowly applied and strictly con-
strued. . . . The burden of establishing the applicabil-
ity of the privilege rests with the party invoking it
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Kosuda-Bigazzi, 335 Conn. 327, 341–
43, 250 A.3d 617 (2020).
Exemptions under the act are also narrowly con-
strued. ‘‘[T]he overarching legislative policy of [the act]
is one that favors the open conduct of government and
free public access to government records. . . . [I]t is
well established that the general rule under the [act] is
disclosure, and any exception to that rule will be nar-
rowly construed in light of the general policy of open-
ness 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. . . .
‘‘When a claim of attorney-client privilege is invoked
in an administrative proceeding, [appellate] review of
a determination as to whether that privilege applies
is governed by the [act] . . . . Judicial review of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion.’’ (Citation omitted; internal quotation marks
omitted.) Harrington v. Freedom of Information Com-
mission, supra, 323 Conn. 13.
In Shew v. Freedom of Information Commission,
245 Conn. 149, 714 A.2d 664 (1998), our Supreme Court
considered the issue of ‘‘whether the attorney-client
privilege protects communications in circumstances
where the client is a corporate or municipal entity,
rather than an individual . . . .’’ Id., 158. In concluding
that it does protect such communications, the court
adopted the following test: ‘‘[C]ommunications to an
attorney for a public agency are protected from disclo-
sure by privilege if the following conditions are met:
(1) the attorney must be acting in a professional capac-
ity 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 confi-
dence.’’8 (Footnote omitted; internal quotation marks
omitted.) Id., 159.
In the present case, the commission did not specifi-
cally cite to Shew in its decision9 but, rather, relied on
our Supreme Court’s recent decision in State v. Kosuda-
Bigazzi, supra, 335 Conn. 327, in which the court set
forth three ways to establish the attorney-client privi-
lege with regard to documents. Specifically, in Kosuda-
Bigazzi, the court explained: ‘‘First, a party can estab-
lish that a document is privileged by showing that the
document is itself the record or memorialization of a
communication between the client and the attorney.
. . . [Second] [i]f the document is not a record of a
communication, a party can still establish privilege by
showing that (1) the document was created with the
intent to communicate the contents to an attorney, and
(2) the client actually communicated the contents to
the attorney.’’ (Citations omitted.) Id., 343. The third
way for a party to establish that a document is protected
by the attorney-client privilege is ‘‘by showing transfor-
mation of a preexisting document into a communication
for the purpose of seeking legal advice and that the
document was communicated to or intended to be com-
municated to an attorney. Preexisting documents are
documents that are not a record of a communication
and were not created for the purpose of seeking legal
advice. . . . [Preexisting] documents that are not in
themselves communications . . . are treated in differ-
ent ways, depending on how the attorney acquired
them. . . . A preexisting document does not become
privileged merely because it is transferred to or routed
through an attorney. . . . However, a preexisting doc-
ument could become privileged if it were somehow
transformed for the purpose of seeking legal advice and
communicated or intended to be communicated to an
attorney. See Angst v. Mack Trucks, Inc., Docket Nos.
90-3274, 90-4329, 1991 WL 86931, *2 (E.D. Pa. May 14,
1991) (reasoning that plaintiff’s handwritten notes made
for personal use, not for purpose of securing attorney,
would not fall within privilege, but typed compilation
and summary created for purpose of securing counsel
would fall within privilege).’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) State
v. Kosuda-Bigazzi, supra, 344–45.
On appeal, the plaintiffs argue that the commission
erred by not considering or applying the test set forth
in Shew for determining whether a communication
between a public employee and an attorney is privi-
leged. Relying on Shew, the plaintiffs argue that ‘‘the
notes in this case were given to the [town attorney] for
the sole purpose of providing legal advice . . . [and]
[a]s such, the notes are exempt from disclosure pursu-
ant to the attorney-client privilege.’’ The commission
counters that Shew, which ‘‘specifically addresses the
issue of records that memorialize communications
between counsel and public employees . . . does not
address the issue [in the present case]’’ and that the
commission properly determined that the plaintiffs
failed to demonstrate one of the three criteria set forth
in Kosuda-Bigazzi for establishing that a document is
privileged. Sastre makes an argument similar to that of
the commission and argues further that, even under the
test set forth in Shew, the plaintiffs failed to meet their
burden of demonstrating that the attorney-client privi-
lege applies. We conclude that, under either test, the
plaintiffs failed to meet their burden of establishing that
the log is exempt from disclosure pursuant to § 1-210
(b) (10) under the attorney-client privilege.
In its final decision, the commission made the follow-
ing factual findings regarding the plaintiffs’ attorney-
client privilege claim. The commission ‘‘found that the
. . . town manager is not an attorney and that the
employee was not seeking legal advice from him. Rather
. . . the employee was seeking the . . . town manag-
er’s guidance on how to deal with [Chief Rinaldo]
regarding the incidents that the employee had observed.
. . . [F]ollowing [their] November, 2019 meeting . . .
the . . . town manager contacted [the town attorney]
in order to obtain legal advice regarding the incidents
the town employee had described to him. . . . [T]he
. . . town manager relayed to [the town attorney] the
incidents that had been described to him by the
employee. . . . [A]t such time, the town [attorney]
asked the . . . town manager to inquire of the
employee as to whether the employee had any docu-
mentation or personal notes concerning the incidents
involving [Chief Rinaldo]. . . .
‘‘[T]he . . . town manager contacted the employee
and first learned that the employee had created a log
detailing the underlying incidents. . . . [T]he . . .
town manager informed the employee that the town
[attorney] wished to review the log. . . . [T]he
employee provided the log to the . . . town manager,
who made a copy of the log, provided the copy to the
town [attorney], and returned the log to the employee.’’
On the basis of those uncontested facts, as found by
the commission, and following its in camera review of
the log, the commission found that the log ‘‘[does] not
constitute a record of communication between the cli-
ent and the attorney.’’ The commission further found
that the log was ‘‘not created with the intent to commu-
nicate the contents to an attorney.’’ The commission
also stated in its final decision: ‘‘It is found that the log
is a preexisting document, in that it was in existence
before the town [manager] sought legal advice from the
town attorney. It is further found that the employee
created the log for his own personal use and not for
the purpose of seeking legal advice. It is also found
that the employee did not later create a typed compila-
tion and/or summary of the log for the purpose of secur-
ing counsel. Accordingly, it is found that the log is
not a communication protected by the attorney-client
privilege. Finally, it is concluded that the employee’s
log in the possession of the . . . town manager is not
an attorney-client privileged document within the mean-
ing of § 1-210 (b) (10) . . . .’’ The Superior Court
agreed with the commission’s determination and ren-
dered judgment dismissing the appeal.
We conclude, on the basis of our thorough review of
the record, including an in camera review of the log,
that the record contains substantial evidence to support
the commission’s findings that (1) the log contains per-
sonal observations of the employee relating to the con-
duct of Chief Rinaldo, (2) the employee created the log
for his own personal use, (3) the log was not created
for the purpose of seeking legal advice or with the intent
to communicate its contents to an attorney, (4) the
employee met with the town manager, who is not an
attorney, to discuss the employee’s concerns about
Chief Rinaldo’s conduct and to seek ‘‘guidance on how
to deal with [Chief Rinaldo] regarding the incidents that
the employee had observed,’’ and (5) the log does not
constitute a record of communication between a client
and an attorney, as there is no evidence in the record
showing that the employee who created the log ever
spoke with the town attorney. We first note that those
findings relate to the second and third parts of the Shew
test; therefore, the court, in effect, applied the test in
Shew when it analyzed the plaintiffs’ claim of attorney-
client privilege. Moreover, those findings support a con-
clusion that the plaintiffs failed to meet their burden
of establishing that the log is exempt from disclosure
under the attorney-client privilege, either under the
Shew test or the first two of the three ways to establish
the attorney-client privilege with regard to documents
as set forth by our Supreme Court in Kosuda-Bigazzi.
See Harrington v. Freedom of Information Commis-
sion, supra, 323 Conn. 16 (‘‘[I]t is not enough for the
party invoking the privilege to show that a communica-
tion to legal counsel relayed information that might
become relevant to the future rendering of legal advice.
Instead, the communication must also either explicitly
or implicitly seek specific legal advice about that factual
information.’’ (Internal quotation marks omitted.)).
Furthermore, the commission’s finding ‘‘that the log
is a preexisting document, in that it was in existence
before the town [manager] sought legal advice from the
town attorney,’’ is also supported by the substantial
evidence in the record concerning the log, demonstra-
ting that it is not a record of a communication and was
not created for the purpose of seeking legal advice. See
State v. Kosuda-Bigazzi, supra, 335 Conn. 344. As our
Supreme Court has stated, such documents can become
privileged if the documents ‘‘were somehow trans-
formed for the purpose of seeking legal advice and
communicated or intended to be communicated to an
attorney.’’ Id., 345. In the present case, the commission
specifically found ‘‘that the employee did not later cre-
ate a typed compilation and/or summary of the log for
the purpose of securing counsel.’’ There is, therefore,
no evidence in the record demonstrating a transforma-
tion of the log for the purpose of seeking legal counsel.
The log did not become a privileged document simply
because the town manager provided the log to the town
attorney when he sought legal advice about how the
town should proceed with respect to Chief Rinaldo.
See State v. Kosuda-Bigazzi, supra, 345. The plaintiffs’
argument that the log was provided to the town attorney
solely for the purpose of seeking legal advice ignores
the fact that the legal advice sought was for the town,
not the person who created the log.10 Accordingly, we
conclude that the commission did not act unreasonably,
arbitrarily, illegally or in abuse of its discretion in con-
cluding that the log was not exempt from disclosure
under the act pursuant to the attorney-client privilege.
See Lewin v. Freedom of Information Commission,
91 Conn. App. 521, 525, 881 A.2d 519, cert. denied, 276
Conn. 921, 888 A.2d 88 (2005).
In summary, we conclude that the log constitutes a
public record subject to disclosure under the act and
that the commission’s determination that it is not
exempt from disclosure under the act pursuant to the
attorney-client privilege resulted from a correct applica-
tion of the law to the facts found. Accordingly, the court
properly rendered judgment dismissing the plaintiffs’
administrative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 1-200 (5) provides: ‘‘ ‘Public records or files’ means
any recorded data or information relating to the conduct of the public’s
business prepared, owned, used, received or retained by a public agency,
or to which a public agency is entitled to receive a copy by law or contract
under section 1-218, whether such data or information be handwritten, typed,
tape-recorded, videotaped, printed, photostated, photographed or recorded
by any other method.’’
Although § 1-200 was amended by No. 21-2, § 147, of the 2021 Public Acts,
the amendment has no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
2
Section 1-210 governs access to public records. Subsection (b) of General
Statutes § 1-210 provides in relevant part: ‘‘Nothing in the Freedom of Infor-
mation Act shall be construed to require disclosure of . . . (10) Records,
tax returns, reports and statements exempted by federal law or the general
statutes or communications privileged by the attorney-client relationship,
marital relationship, clergy-penitent relationship, doctor-patient relation-
ship, therapist-patient relationship or any other privilege established by the
common law or the general statutes, including any such records, tax returns,
reports or communications that were created or made prior to the establish-
ment of the applicable privilege under the common law or the general
statutes . . . .’’
3
‘‘The employee’s log is an eleven page document with the employee’s
personal observations of work-related activities of Chief Rinaldo from June
20, 2018, through October 25, 2019. The hearing officer found, and it appears
[to be] undisputed, that the log was prepared by the employee for the
employee’s own personal purposes.’’
4
On appeal to the Superior Court, the plaintiffs argued both that the log
is not a public record and that, even if it were, it is exempt from disclosure
under the attorney-client privilege. In its memorandum of decision, the court
stated in a footnote: ‘‘The court notes that the plaintiffs did not timely
challenge the status of the log as a public record in the agency proceeding
below. When the log was requested by the hearing officer for in camera
review, the plaintiffs’ attorney voluntarily provided the log on behalf of
the town. The only defense to disclosure effectively asserted [before the
commission] was the attorney-client privilege.’’ Nonetheless, the court
addressed the issue of whether the log is a public record and agreed with
the commission’s determination that the log is a public record under § 1-
200 (5). In their principal appellate brief, the plaintiffs contend that they
properly raised the claim before the commission issued its decision, and
neither the commission nor Sastre argues on appeal that the issue of whether
the log is a public record was not preserved and should not be reviewed.
Given that the plaintiffs did raise a claim before the commission that the
log is not a public record, that both the commission and the Superior Court
substantively addressed the issue and found the log to be a public record,
and that no objection has been raised on appeal to our consideration of the
issue, we will review this claim.
5
In support of their claim that the commission erred in determining that
the log is a public record, the plaintiffs also argue that ‘‘the document is
not a public record, but rather private notes of an individual.’’ Throughout
their appellate briefs, the plaintiffs repeatedly refer to the personal nature
of the employee’s notes and observations contained in the log, arguing that
notes of a personal nature are not subject to review by the public and, thus,
cannot constitute a public record. The plaintiffs also cite federal case law
for the proposition that ‘‘ ‘[d]isclosure of . . . personal documents would
invade the privacy of and impede the working habits of’ ’’ an employee.
Both the commission and Sastre counter that the plaintiffs cannot now
claim, for the first time on appeal, that the disclosure of the log would
constitute an invasion of the public employee’s privacy. Specifically, the
commission and Sastre argue that any claim that the disclosure of the log
would constitute an invasion of privacy under § 1-210 (b) (2) should have
been made before the hearing officer and the commission and that the
plaintiffs’ failure to do so precludes them from objecting to the disclosure
of the log for privacy reasons in this appeal. As Sastre and the commission
both point out, the plaintiffs have repeatedly tried to shoehorn arguments
regarding the ‘‘personal’’ or ‘‘private’’ nature of the log into their other claims,
despite never having properly raised the invasion of privacy exemption
under § 1-210 (b) (2). They further assert that arguments relating to the
personal and private nature of the log are irrelevant to whether the log is
a public record. We agree with the commission and Sastre.
Although the plaintiffs argue that the personal or private nature of the
log prevents it from being a public record, any such argument is unavailing,
as the definition of a public record under § 1-200 (5) centers not on whether
the document contains information personal to the person who created it,
but rather on whether that information ‘‘relat[es] to the conduct of the
public’s business . . . .’’ General Statutes § 1-200 (5). Additionally, because
the plaintiffs did not raise an invasion of privacy claim under § 1-210 (b)
(2) before the commission, they are precluded from doing so now. See
Dortenzio v. Freedom of Information Commission, 42 Conn. App. 402, 409,
679 A.2d 978 (1996) (review of commission’s decision is limited to issues
raised before commission and findings in administrative record). Accord-
ingly, the plaintiffs’ arguments concerning the personal and private nature
of the log are simply an attempt to argue a claim that was never properly
raised, and, therefore, we do not take them into consideration in our determi-
nation of whether the log constitutes a public record under the act.
6
We note ‘‘the well established practice of this court to accord great
deference to the construction given [a] statute by the agency charged with
its enforcement.’’ (Internal quotation marks omitted.) Bridgeport v. Freedom
of Information Commission, 222 Conn. App. 17, 44, 304 A.3d 481 (2023),
cert. denied, 348 Conn. 936, 306 A.3d 1072 (2024). Our Supreme Court
recently explained that it ‘‘will defer to an agency’s construction of a statute
or administrative regulation if the language at issue is ambiguous and the
agency’s construction is time-tested, reasonable, and previously has been
subject to judicial scrutiny. . . . When the statute or regulation at issue is
not ambiguous, or the agency’s construction of the statute or regulation is
not time-tested, reasonable, or has not previously been subjected to judicial
scrutiny, ‘we apply a broader standard of review . . . .’ ’’ (Citation omitted.)
Commissioner of Mental Health & Addiction Services v. Freedom of Infor-
mation Commission, 347 Conn. 675, 688, 299 A.3d 197 (2023). In the present
case, the language of § 1-200 (5) is not ambiguous, and the commission does
not claim that its construction of the statute is entitled to deference or that
it is time-tested. Moreover, the commission’s final decision includes the
commission’s legal determination that the log is a public record within the
meaning of § 1-200 (5), without any analysis or interpretation of the definition
of a public record as set forth therein. Accordingly, we conclude that the
issue of statutory interpretation in the present case is a question of law
subject to plenary review. See, e.g., Commissioner of Emergency Services &
Public Protection v. Freedom of Information Commission, supra, 330 Conn.
382 (applying plenary review to question of statutory construction); Williams
v. Freedom of Information Commission, 108 Conn. App. 471, 478, 948 A.2d
1058 (2008) (same); Zoning Board of Appeals v. Freedom of Information
Commission, 66 Conn. App. 279, 283–86, 784 A.2d 383 (2001) (same).
7
In its appellate brief, the commission asserts that the ‘‘plaintiffs either
do not dispute that the log, which consists of concerns regarding work-
related conduct of [Chief Rinaldo], pertains to the public’s business or,
alternatively, have failed to adequately brief that issue.’’ In their appellate
briefs, the plaintiffs make a passing reference that the log does not relate
to the public’s business. Additionally, the plaintiffs refer to the conduct of
the public’s business requirement in a footnote in their principal appellate
brief and then cite to two commission decisions in which the document at
issue was not considered to be a public record because it did not relate to
the conduct of the public’s business. The facts of those decisions, however,
are inapposite to the present case. Moreover, the plaintiffs’ principal appel-
late brief is devoid of any argument or application of that law to the facts
of the present case or any analysis concerning whether the log is related
to the conduct of the public’s business. To the extent that the plaintiffs, by
referring to the personal nature of the information in the log, are asserting
that it does not relate to the public’s business, we are not persuaded. First,
as we stated, the plaintiff’s appellate brief is devoid of the necessary analysis
and citation to applicable law regarding what constitutes the ‘‘public’s busi-
ness’’ to properly assert such a claim for appellate review. Additionally,
the plaintiffs, by referencing the personal nature of the log, appear to be
implicating, without specifically referencing, the right to privacy exemption
under the act, which is not applicable to this case. See footnote 5 of this opin-
ion.
‘‘We repeatedly have stated that [w]e are not required to review issues
that have been improperly presented to this court through an inadequate
brief. . . . Analysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly. . . .
[F]or this court judiciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set forth their arguments
in their briefs.’’ (Emphasis added; internal quotation marks omitted.)
Buchenholz v. Buchenholz, 221 Conn. App. 132, 142 n.6, 300 A.3d 1233, cert.
denied, 348 Conn. 928, 304 A.3d 860 (2023). ‘‘Claims are . . . inadequately
briefed when they . . . consist of conclusory assertions . . . with no men-
tion of relevant authority and minimal or no citations from the record . . . .’’
(Internal quotation marks omitted.) Rosario v. Rosario, 198 Conn. App. 83,
90, 232 A.3d 1105 (2020). We agree with the commission that the claim was
inadequately briefed; however, while we are not required to review an issue
that has not been adequately briefed, in the interest of thoroughness in
explaining why the log is a public record under the act and in our plenary
review, we will address the relation between the log and the public’s busi-
ness. See, e.g., State v. Buhl, 321 Conn. 688, 724 n.29, 138 A.3d 868 (2016)
(whether to review inadequately briefed claim constitutes exercise of judicial
discretion).
8
The legislature subsequently codified the common-law attorney-client
privilege in General Statutes § 52-146r, which, in subsection (b), provides
that ‘‘[i]n any civil or criminal case or proceeding or in any legislative or
administrative proceeding, all confidential communications shall be privi-
leged and a government attorney shall not disclose any such communications
unless an authorized representative of the public agency consents to waive
the privilege and allow such disclosure.’’ See also Maxwell v. Freedom of
Information Commission, 260 Conn. 143, 149, 794 A.2d 535 (2002). The
statute defines ‘‘confidential communications’’ to include ‘‘all oral and writ-
ten 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 . . . .’’ General Statutes § 52-146r (a) (2). ‘‘[T]he essential elements
of the attorney-client privilege under both statutory and common law are
identical.’’ (Internal quotation marks omitted.) Chairperson, Connecticut
Medical Examining Board v. Freedom of Information Commission, 310
Conn. 276, 301 n.9, 77 A.3d 121 (2013) (Norcott, J., concurring). For purposes
of both §§ 1-210 (b) (10) and 52-146r, the four part test set forth in Shew
is applied to determine whether communications are privileged. See id.;
Lash v. Freedom of Information Commission, 300 Conn. 511, 515–16, 14
A.3d 998 (2011).
9
We note, however, that the commission cited to both the common-law
definition of the attorney-client privilege, as set forth in Maxwell v. Freedom
of Information Commission, 260 Conn. 143, 149, 794 A.2d 535 (2002), and
the statutory definition in General Statutes § 52-146r. As we stated previously
in this opinion, the essential elements under both the common-law and
statutory privilege are identical and are embodied in the four part test set
forth in Shew. See footnote 8 of this opinion.
10
In their principal appellate brief, the plaintiffs assert that ‘‘there was a
confidential communication between a managerial employee and the [town
attorney] regarding a matter pertaining to work at the town. Rather than
interview the individual . . . the [town attorney] asked the individual to
provide any notes . . . of [the individual’s] concerns. As such, the communi-
cation between the [town attorney] and the individual took the form of a
written communication that occurred for the sole purpose of receiving
legal advice. Therefore, as in Shew, the communication between [the town
attorney] and the employee was privileged and is not subject to public
disclosure pursuant to § 1-210 (b) (10).’’ We do not agree with the plaintiffs’
assertion or their characterization of the ‘‘communication’’ at issue. The log
was created by the employee before any communication was made by
the town manager to the town attorney. Therefore, even though it was
subsequently provided to the town attorney, that does not change the fact
that it was not created by the employee for the purpose of seeking legal
advice, nor does it transform the log, a preexisting document, into a commu-
nication between the employee and the town attorney. This is not a situation
in which the employee, at the town attorney’s request, created the document
to summarize information for which he sought legal advice. Moreover, the
plaintiffs misapply Shew when they describe the communication between
the town manager and the town attorney as ‘‘confidential,’’ rather than the
log, which is the alleged privileged communication or document. See Shew
v. Freedom of Information Commission, supra, 245 Conn. 159. Any confiden-
tial discussion that occurred between the town manager and the town
attorney is not at issue in this case, in which the plaintiffs are asserting that
the log constitutes a privileged communication.