Shew v. FOIC was a case before the Connecticut Supreme Court in 1998 concerning the deliberative process exemption.
This case established a number of important precedents:
1.) The test to determine if the attorney-client privilege contains 4 factors, namely:
- Is the attorney acting in a professional capacity?
- Is the communication made by public officials?
- Is the communication made in an attempt to gain legal advice?
- Is the communication made in confidence?
2.) The preliminary drafts exemption applies to documents created for the public body by contractors, in the same way it applies to documents created by public employees.
- Edward Peruta submitted a FOIA request to the city of Rocky Hill for interview documents produced by legal counsel in the process of investigating the city's chief of police in 1992.
- The city denied the request, claiming the documents fell under the exemption for attorney-client privilege.
- Peruta filed suit and the Connecticut Freedom of Information Commission ruled in his favor, ordering the release of the documents.
- The city appealed the decision and the trial court overturned the decision of the FOIC.
- The decision was then appealed to the court of appeals and finally the Supreme Court.
Ruling of the court
The FOIC ruled in favor of Peruta, ordering the city to release the documents in question. However, the trial court overturned the decision of the commission, determining that the documents were exempt under the attorney-client privilege and as working papers, and remanded the case to the commission for a determination as to the public interest in release. This decision was affirmed by the court of appeals.
The Supreme Court affirmed the decision of the court of appeals. The court first adopted the test established by the court of appeals to determine whether or not the documents fell under the attorney-client privilege, namely:
"(1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence." The court then affirmed the decision of the court of appeals, namely that the first and third condition were met, but remanded the case for further review to determine if the second and fourth had been met. The court went on to determine that the interviews and information collected by the attorney were inherently preliminary in nature, as they were created solely for the purpose of writing a final report. In addition, the court determined that the exemption still applied despite the fact that the attorney was not a permanent public employee, but one hired for only a temporary purpose. The court felt that the intention of the legislature still covered this role, despite its non-permanent nature. Based on these decisions, the court determined that the documents fell within the exemptions outlined by the city and remanded the case for further consideration on the public interest and the factors outlined for the attorney-client privilege test.