April 16, 2002                                                    CONNECTICUT LAW JOURNAL                                                           Page 99

 

260 Conn. 143                                     APRIL, 2002                                                    143

                                            Maxwell v. Freedom of Information Comrnission                                                         

 

KATHERINE MAXWELL, CONTROLLER OF THE

TOWN OF WINDHAM, ET AL. v. FREEDOM

OF INFORMATION COMMISSION, ET AL.

(SC 16567)

Sullivan, C. J., and Borden, Norcott, Vertefeuille and Zarella, Js.

Syllabus

 

The plaintiffs, the town of Windham and its controller, appealed to the trial court from a decision by the defendant freedom of information comnussion ordering the disclosure of certain billing records of the town counsel. The plaintiffs had resisted disclosure claiming, inter alia, that the records contained confidential attorney‑client communications protected by statute (§ 1‑210 [b] [10]) fromdisclosure. In orderingdisclo­sure, the commission concluded that the plaintiffs had not proved that the invoices contained confidential communications within the meaning of the exemption under §1‑210 (b) (10). The trial court rendered judg­ment dismissing the appeal, from which the plaintiffs appealed. Held:

 

1. The plaintiffs could not prevail on their claim that the enactment of the statute (§ 52‑146r) providing that the attorney‑client privilege applies to communications between government attomeys and the public agencies that employ them, which took effect after the commission had rendered its decision, required reversal of the commission's decision; ~ 52‑146r, irrespective of whether it is applied prospectively or retrospectively, merely codified the common‑law attorney‑client privilege as this court previously had defined it and would not affect the legal standard that the commission applied in determining that the invoices were not protected by the attorney‑client privilege.

 

2. Contrary to the claim made by the plaintiffs, §1‑210 (b) (10) does not unconstitutionally delegate to the freedom of information commission the authority to define the attorney‑client privilege; the scope of the exemption under that statute is determined by reference to the common­law principles that defined the attomey‑client privilege when the statute was enacted.

 

Argued November 28, 2001—officially released April I6. 2002

Procedural llistory

 

    Appeal from a decision by the named defendant

ordering the disclosure to the defendant Steven Edel­-

man of certain of the plaintiff town of Windham's legal

fee billing documents, brought to the Superior Court

in the judicial district of New Britain and tried to the

 

 

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                                            Maxwell v. Freedom of Information Comrnission                       

 

 

court, Wiese, J.; judgment dismissing the appeal, from which the plaintiffs appealed. Affirmed.

 

    Richard S. Cody, for the appellants (plaintiffs).

 

Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general coun­sel, for the appellee (named defendant).

 

Opinion

 

VERTEFEUILLE, J. This appeal presents two issues for our consideration, namely, whether (1) retroactive application of General Statutes § 52‑146r,[1] which pre­vents disclosure of confidential communications between a government attorney and its agency client, would prevent the disclosure of certain documents pur­suant to the Freedom of Information Act (act), specifi­cally General Statutes § 1‑210,[2] and (2) in enacting § 1­-

 

 

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                                            Maxwell v. Freedom of Information Comrnission                                                         

 

 

210 (b) (10), the legislature unconstitutionally delegated to the named defendant, the freedom of information commission (commission), the authority to define the attorney‑client privilege in violation of the separation of powers doctrine embodied in the Connecticut consti­tution. We conclude that § 52‑146r, if applied retroac­tively, would not prevent the disclosure of the documents at issue, and that the action of the legislature in enacting § 1‑210 (b) (10) was constitutionally sound.

 

The plaintiffs, Katherine Maxwell, the controller of the town of Windham, and the town of Windham, appealed to the Appellate Court from the judgment of the trial court affirming the decision of the commission ordering the disclosure of certain documents pursuant to the act. We transferred the appeal to this court pursu­ant to General Statutes § 51‑199 (c) and Practice Book § 65‑1.

 

     The following facts and procedural history are rele­-

vant to our resolution of this appeal. Pursuant to the act,

   the defendant Steven Edelman[3] requested disclosure by

   the plaintiffs of "all [of the town's] legal bills, receipts,

   itemized statements and similar instruments since

   1994." Maxwell informed Edelman that while some of

   these records were available for inspection, certain bill­

   ing invoices of the Windham town counsel, Richard

   Cody, were exempt from disclosure because they

   involved pending litigation.[4] Edelman subsequently

   filed a complaint with the commission requesting that

   the plaintiffs be compelled to disclose the invoices.

 

 

 

 

 

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The plaintiffs claimed before the commission that the invoices were exempt from disclosure pursuant to two exemptions in the act. The first exemption claimed was based on § 1‑210 (b) (10), which shields from disclo­sure, among other things, "communications privileged by the attorney‑client relationship . . . ." The plaintiffs also claimed exemption under § 1‑210 (b) (4), which bars disclosure of "[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled ...."

 

The commission first concluded that the plaintiffs had not proven that the invoices "contain confidential communications within the meaning of the attorney­client privilege exemption" under § 1‑210 (b) (10). With respect to the second claimed exemption, the commis­sion concluded that the plaintiffs "failed to prove that the counsel bills pertain to strategy and negotiations with respect to pending claims or pending litigation within the meaning of § 1‑210 (b) (4) ...."[5] Accord­ingly, the commission ordered the plaintiffs to disclose the invoices.

 

The plaintiffs then appealed from the final decision of the commission to the trial court. They claimed, inter alia, that § 52‑146r, which took effect after the commission rendered its decision,[6] should be applied retroactively and required reversal of the decision of the commission. They also contended that § 1‑210 (b) (10) constituted an unconstitutional delegation to the commission of the authority to define the attorney­client privilege in violation of the separation of powers

 

 

 

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doctrine. The trial court rejected both claims and affirmed the decision of the commission. This appeal followed.

 

The first issue that we address is whether the enact­ment of § 52‑146r requires reversal of the decision of the commission. The plaintiffs claim that § 52‑146r, which provides that the attorney‑client privilege applies to communications between government attorneys and the public agencies by which they are employed, should apply retroactively to the commission's decision, and that such application would result in reversal of the decision that the invoices were not subject to the attor­ney‑client privilege. The commission claims that § 52­-146r was a substantive change in the law and thus must be applied prospectively only. We conclude that the language and legislative history of § 52‑146r demon­strate that the statute was intended to codify the preex­isting law pertaining to the attorney‑client privilege. Therefore, irrespective of whether § 52‑146r applies prospectively or retroactively, that statute does not require reversal of the decision of the commission.

 

We begin by setting forth the standard of review that governs our examination of this issue. Determining the effect of § 52‑146r on the decision of the commission is an issue of statutory construction. Our review of the trial court's decision therefore is plenary. See Doyle v. Metropolitan Property & Casulalty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

 

When construing a statute, "[o]ur fundamental objec­tive is to ascertain and give effect to the apparent intent of the legislature.. . . In seeking to discern that intent, we look to the words of the statute itself, to the legisla­tive history and circumstances surrounding its enact­ment, to the legislative policy it was designed to implement, and to its relationship to existing legislation

 

 

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and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 91‑92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

 

We begin our analysis with the language of § 52‑146r (b), which provides: "In any civil or criminal case or proceeding or in any legislative or administrative pro­ceeding, all confidential communications shall be privi­leged 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." The term "[c]onfidential communications" is defined in § 52‑146r (a) (2) as "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 ...."

 

Prior to the enactment of § 52‑146r, we held in Shew v. Freedom of Information Commission, 245 Conn. 149, 158, 714 A.2d 664 (1998), that the attorney‑client privilege applies to communications between a munici­pality and its attorney. In adopting the test previously employed by the Appellate Court in that case; Shew v. Freedom of Information Commission, 44 Conn. App. 611, 620‑21, 691 A.2d 29 (1997); we defined the privilege as follows: "[C]ommunications to an attorney for a pub­lic agency are protected from disclosure by privilege if the following conditions are met: (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

 

 

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communications must relate to the legal advice sought by the agency from the attorney, and (4) the communi­cations must be made in confidence." (Internal quota­tion marks omitted.) Shew v. Freedom of Information Commission, supra, 245 Conn. 159.

 

A comparison of our articulation of the privilege in Shew and the language of § 52‑146r demonstrates that the essential elements of the common‑law and statutory privileges are identical. At their core, both the common­-law and statutory privileges protect those communica­tions between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.

 

The legislative history of § 52‑146r buttresses our con­-

clusion that that statute merely codifies the common­

law attorney‑client privilege. Representative Paul R.

Doyle, a proponent of the bill that ultimately became

§ 52‑146r, made the following remarks on the floor of

the House of Representatives: "What this bill does is

it clarifies, recently the Connecticut Supreme Court

determined that clearly a municipality and a lawyer

have [an] attorney‑client privilege agreement too. But

the trouble is that does not clarify whether or not state

officials and their attorneys have an attorney‑client priv­-

ilege. The overall attorney‑client privilege is basically

a common law right. And this just clarifies that there

is a statutory attorney‑client privilege between a state

official and an employee." 42 H.R. Proc., Pt. 10, 1999

Sess., pp. 3609‑10. Representative Doyle's remarks

make clear the legislature's intention that § 52‑146r

merely codify the common‑law attorney‑client privilege

as this court previously had defined it.

 

The commission correctly applied the common‑law

attorney‑client privilege in concluding that the invoices

 

 

 

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were not exempt from disclosure. Although the com­mission did not refer to our decision in Shew explicitly, the commission in its final decision cited LaFaive v. DiLoreto, 2 Conn. App. 58, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984), and Ullmann v. State, 230 Conn. 698, 647 A.2d 324 (1994), in setting forth the elements of the attorney‑client privilege. Shew, LaFaive and Ullmann all enunciate the same well estab­lished common‑law elements of the attorney‑client priv­ilege; § 52‑146r merely codified those elements.

 

It is therefore unnecessary to decide the issue of whether § 52‑146r applies prospectively or retroac­tively. That statute, even if applied retroactively, would not affect the legal standard that the commission applied in deciding that the invoices were not protected by the attorney‑client privilege. We therefore reject the plaintiffs' argument that § 52‑146r requires reversal of the decision of the commission.

 

II

 

We turn now to the plaintiffs' second contention, namely, that the legislature, in enacting § 1‑210 (b) (10), violated the separation of powers doctrine embodied in article second of the constitution of Connecticut.[7] Specifically, the plaintiffs claim that § 1‑210 (b) (10), by delegating to the commission the authority to define the attorney‑client privilege, unconstitutionally intruded upon the authority of the judicial branch. We conclude that § 1‑210 (b) (10) does not delegate such authority to the commission, and therefore we disagree with the plaintiffs.

 

 

 

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                                            Maxwell v. Freedom of Information Comrnission                                                         

 

 

The plaintiffs' argument is premised upon the assumption that in § 1‑210 (b) (10), the legislature has delegated to the commission the authority to define, and therefore eviscerate, the attorney‑client privilege. Section 1‑210 (b) (10) does not, however, in its language or operation, support that assumption. The statute in no way addresses the authority of the commission. Instead, § 1‑210 (b) simply provides that "[n]othing in the [act] shall be construed to require disclosure of . . . (10) . . . communications privileged by the attorney‑client relationship . . . ."

 

At the time the commission rendered its decision in the present case, there was no extant statutory defini­tion of "communications privileged by the attorney­client relationship." The fact that this phrase was left undefined, however, does not mean that the commis­sion was given a blank slate upon which to formulate its own definition of the privilege. "In the absence of guidance from the language of the statute or the legisla­tive history, we look to common law principles .... It is assumed that all legislation is interpreted in light of the common law at the time of its enactment." (Internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 153, 680 A.2d 1231 (1996); see also Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 91, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). The scope of the exemption for attorney‑client privileged communications under § 1‑210 (b) (10) prior to the enactment of § 52‑146r was therefore defined by reference to the common‑law privilege. Thus, the statute simply reinforces the notion that the commission, in rendering its decisions, must apply and respect the privilege when it is asserted. Moreover, any improper failure by the commission to apply the privilege would be subject to judicial review.

 

Our construction of § 1‑210 (b) (10) is bolstered by the legislative history of the act. As we noted in Rules

 

 

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Committee of the Superior Court v. Freedom of Infor­mation Commission, 192 Conn. 234, 240, 472 A.2d 9 (1984), the legislative history of the act expresses a concern with preserving the independence of the judi­cial branch and avoiding potential separation of powers issues that could arise from conflicts between the act and the prerogatives of the judicial branch. Our conclu­sion that § 1‑210 (b) (10) does not delegate to the com­mission the authority to define the attorney‑client privilege sidesteps a potential clash between the act and the judicial branch, and therefore respects the legis­lative concern for the independence of the judicial branch. Finally, our conclusion is supported by the well established canon of statutory construction that "when presented with a constitutional challenge to a validly enacted statute . . . [we must] construe the statute, if possible, to comport with the constitution's require­ments." Id.                        

 

Because we conclude that § 1‑210 (b) (10) does not invest the commission with the authority to formulate the attorney‑client privilege, we need not address the issue of whether such a delegation is consistent with article second of the constitution of Connecticut.

 

The judgment is affirmed.

 

In this opinion the other justices concurred.