In Harp v. King, the 2002 Connecticut Supreme Court adopted a moderate approach to strike the fairest balance between the competing policy interests of preserving confidential attorney-client communications and encouraging the party seeking the benefit of the attorney-client privilege to take care in handling otherwise privileged material. Paul Kadri, former superintendent of Groton Public Schools, appealed to the Freedom of Information Commission, alleging that Groton's Board of Education and its chairman violated the Freedom of Information Act by failing to comply with his records request. The record in issue at the hearing was an email published, in part, by the New London Day. It was undisputed that the email once comprised a confidential attorney-client communication. The complainant contended that the disclosure was intentional and the privilege waived. The FOIC found that the respondent board placed the complainant on administrative leave, pending an investigation. The email concerned a response to the chairperson's request for legal advice concerning the risks in revealing to the complainant's counsel the investigation report before it was finalized. The chairperson shared the email with board members. Days later, an article appeared quoting the confidential communication. The FOIC found that the disclosure was unexplainable. Applying Harp's five-step analysis, the FOIC concluded that the unexplained disclosure did not constitute a waiver of the attorney-client privilege. Factors considered included the reasonable precautions taken to prevent inadvertent disclosure. The email was prominently marked, "Confidential: Subject to the Attorney Client Privilege" and the chairperson reiterated to board members that the document attached to her email contained privileged legal advice and should not be shared outside of the board. Following publication, the chairperson contacted the newspaper and was informed the document was anonymously dropped off. The board convened in public to discuss the disclosure and members expressed outrage. The board attended a FOIA training session where privilege was discussed. The overriding interest of fairness factor weighed against finding waiver. The FOIC could not say the board was the source of the disclosure, only that the board did not authorize the disclosure. The respondents did not violate the FOIA in refusing to disclose the email. The complaint was dismissed.

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