District lawyers deny access to PR communications

School lawyers claim the work performed by a public relations firm should not be made public.

The lawyers, Shipman & Goodwin, a firm that represents the majority of public school districts in Connecticut, including Darien, decided that the discussions between the district and Duby McDowell Communications will not be disclosed, citing an exemption clause under the Freedom of Information Act known as lawyer-client privilege.

Tom Mooney, a partner at Shipman and one of the school district’s attorneys, told The Darien Times via email that McDowell’s work is exempt because she is paid through the lawyers.

“The communications with Ms. McDowell or Duby McDowell Communications have been part of attorney client privileged communications,” Mooney stated in an email. “Accordingly, the records you seek are exempt from disclosure under the” Freedom of Information Act.

Mooney carbon-copied McDowell on his denial email, which was sent in response to a Times’ public records request sent the day before. After Mooney’s denial, The Times filed a complaint with the state Freedom of Information Commission, claiming McDowell’s communications should be made public.

A Facebook poll conducted by this newspaper showed that 75% of respondents agreed, indicating they would like McDowell’s work to be made public.

As of Sept. 14, the district has paid McDowell, a former television journalist, more than $26,000. Her services began to appear as itemized expenses on the district’s legal bills in April. This happened after 25 parents filed a complaint with the state Department of Education, alleging systemic violations to state and federal special education laws — allegations that were later confirmed to be true in a two-part state investigation.

It costs Darien about $32,000 a year to educate a child in special education. If McDowell worked in October, her cost would surpass the cost of educating a child with disabilities for one year. October legal and public relations expenses have not yet be provided to The Times.

Given the communication problems that have plagued the district since the complaint surfaced, some residents have expressed a desire to know what McDowell has done for $5,317.50 a month.

Dan Silver, a lawyer and member of the First Amendment Lawyers Association, said that he doubts Shipman’s claim of lawyer-client privilege will be upheld.

“I think it should be discoverable, I do,” Silver said of McDowell’s work. “Generally, if you have a conversation with a lawyer, that information is confidential, and it is considered lawyer-client privilege… The privilege should be waived if a third party has received this information.”

Shipman could argue that McDowell’s work was necessary for the law firm to do its work, in what’s known as a “work product” scenario, Silver said, but generally that rule only applies to professionals whose help is a vital aspect of the law firm’s work.

“If I go and hired a private investigator, statements from that private investigator would have to be disclosed in a lawsuit,” Silver said. “I’d have to give that away.”

There is also a legal provision that protects communications if the third-party, in this case McDowell, is considered the “functional equivalent” of an employee of the law firm’s client, in this case the school district. Public relations are a responsibility of the superintendent of schools, according to Board of Education policy. There is no district position for a public relations manager or a similarly named title.

Connecticut law established a four-part test to determine if communications between a third party are protected. One; the attorney must be acting in a professional capacity for the agency; two, the communications must be made to the attorney by current employees or officials of the agency; three, the communications must relate to the legal advice sought by the agency from the attorney; and four, the communications must be made in confidence.

“Shipman & Goodwin has asked me to assist the firm as it works to communicate the steps the district is taking to address recent concerns,” McDowell told The Times in May. She has since declined to comment about her work with the school district.

The recent complaint filed by The Times is the third complaint filed by this newspaper that deals with the special education crisis. Officials at the state Department of Education have consistently referred The Times to Kelly Donnelly, the department’s communications director, for comment. The Times has numerous outstanding Freedom of Information requests with the state, and the Donnelly has not responded to repeated attempts to know when an answer could be expected.

Andrew Feinstein, the lawyer who has represented the 25 parents pro bono since March, agreed that McDowell’s communications should be publicized.

“Duby has no claim to privilege,” Feinstein said. “The fact that she is paid by Shipman & Goodwin does not make her a lawyer.”

The Times has also asked the Freedom of Information Commission to obtain McDowell’s communications with the district so it could determine what should be disclosed.

A spokesman for the ACLU declined to comment, as did lawyer William Fish, who is currently representing the Associated Press in its efforts to force the state police to release the 911 tapes from last year’s Sandy Hook massacre.

Originally published in The Darien Times.

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