FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Andrew N. Matthews,  
  Complainant  
  against   Docket #FIC 2008-524

State of Connecticut,

Office of the Attorney General,

 
  Respondent July 22, 2009
       

 

The above-captioned matter was heard as a contested case on December 4, 2008 and May 14, 2008, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  Another day of hearing was scheduled for February 5, 2009, at which time the complainant failed to appear (the “February 5 hearing”).  However, the respondent appeared, as did Jeffrey Meyers, a witness, who is neither a party to, nor an intervenor in, this matter, accompanied by counsel, pursuant to a subpoena issued by the respondent.  The matter was continued by the hearing officer.  Subsequently, counsel for Mr. Meyers filed a motion for sanctions, dated February 6, 2009, against counsel for the complainant, for failure to appear at the February 5 hearing.  Such motion is hereby denied.      

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  It is found that, by letter dated June 22, 2008, the complainant made a request to the respondent for 99 specific records and broad categories of records, all relating to, or arising out of, a whistleblower complaint he filed with the respondent in 2005, subsequent complaints of retaliation he filed in 2006 with the respondent and the Commission on Human Rights and Opportunities (“CHRO”), and a federal lawsuit he filed in 2007. 

 

3.  It is found that, by letters dated July 1, 2008, July 29, 2008, August 11, 2008, September 12, 2008, October 10, 2008, October 16, 2008, and December 1, 2008, the respondent provided more than 1,600 copies of records, free of charge, to the complainant, which are responsive to the request described in paragraph 2, above.  It is also found that certain records, or portions thereof, were claimed exempt from disclosure, and were withheld from the complainant. 

 

4.  By letter of complaint dated and filed August 8, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (FOI) Act by failing to fully comply with the request described in paragraph 2, above.

 

5.  Section 1-200(5), G.S., 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, printed, photostated, photographed or recorded by any other method.

 

6.      Section 1-210(a), G.S., provides in relevant part that:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours . . . or (3) receive a copy of such records in accordance with section 1-212.

 

7.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.  It is found that, to the extent that the respondent maintains the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

9.  It is found that the following records, requested in the June 22 letter, were provided to the complainant, and no exemption was claimed for any portion of such records:

 

            (a)  “The CHRO complaint I filed in June 2006” [par. 1];[1]

 

            (b)  “The complaint of retaliation I filed in June 2006” [par. 2];

 

            (c)  “The whistleblower complaint I filed in June 2005” [par. 3];

            (d)  “Standards, policies, procedures, practices and documents concerning the selection of outside attorneys to represent state agencies and employees” [par. 8];

 

            (e)  “Documents concerning the process to solicit attorneys and select attorneys to represent the state police and employees in connection with the federal suit I had filed against you and others” [par. 9];

 

            (f)  “Documents concerning the selection and hiring of outside attorneys to represent the DPS and or any employees” [par. 15];

 

            (g)  “Standards, policies, procedures, practices and documents concerning the receipt, review, auditing, resolving disputes and payment of invoices submitted by outside attorneys” [par. 16];

 

            (h)  “Documents concerning the identification of all CHRO proceedings, lawsuits, claims, threaten [sic] claims and all other matters where your office has provided representation to the DPS or any employees” [par. 19];

 

            (i)  “Documents concerning the resolution, settlement or other disposition of any matter involving DPS or any employee for which your office provided representation” [par. 21];

 

            (j)  “Documents concerning the resolution, settlement or other disposition of any matter involving DPS or any employee for which representation was provided by an outside attorney” [par. 23];

 

            (k)  “Standards, policies, procedures, practices and documents concerning instances when you have recused yourself from involvement in a matter being handled by your office” [par. 26];

 

            (l)  “Documents including, but not limited to, contracts, amendments, invoices and payments to Attorney James Wade [sic] the CHRO complaint I filed in June 2006” [par. 29];

 

            (m)  “Documents including, but not limited to contracts, amendments, invoices, and payments to Attorney Wade in concerning [sic] the complaint of retaliation I filed in June 2006 with the Attorney General’s Office” [par. 30];

 

            (n)  “Documents including, but not limited to contracts, amendments, invoices and payments to Attorney Wade in matters concerning Gregory Senick” [par. 31];

 

            (o)  “Documents including, but not limited to contracts, amendments, invoices and payments to Attorney Wade concerning any other DPS or employee matter” [par. 32];

 

            (p)  “Documents concerning instances where you have refused to or ceased to represent other agencies or employees” [par. 34];

 

            (q)  “Standards, policies, procedures, practices and documents concerning the propriety of and instances where employees of agencies, who are attorneys, represent anyone other than the agency itself.  This includes, but is not limited to, the representation of individual employees” [par. 37];

 

            (r)  “Standards, policies, procedures, practices and documents concerning situations where you and or members of the Attorney General’s Office are sued individually.  This included the review of suits and determination whether your office will provide representation” [par. 38];

 

            (s)  “Documents concerning any obligation you may have to initiate an investigation of a complaint of retaliation” [par. 44];

 

            (t)  “Documents concerning whether you and members of the Attorney General’s Office are subject to the provisions of CGS: 4-61dd” [par. 45];

 

            (u)  “Documents concerning whistleblower complaints made against you or members of the Attorney General’s Office” [par. 46];

 

            (v)  “Standards, policies, procedures, practices and documents concerning the handling of whistleblower complaints made against you and members of the Attorney General’s Office” [par. 47];

 

            (w)  “Standards, policies, procedures, practices and documents concerning the performance of your responsibilities pursuant to CGS: 29-2a” [par. 51];

 

            (x)  “Standards, policies, procedures, practices and documents concerning your receipt, processing and assessment of whistleblower complaints referred to you by the Auditors of Public Accounts” [par. 57];

 

            (y)  “Standards, policies, procedures, practices and documents concerning whistleblower investigations including but not limited to determinations whether to conduct an investigation, the extent of any investigation and timeframe for the completion of any investigation” [par. 58];

 

            (z)  “Documents concerning the amount of money you authorized to be paid to outside law firms for their services in connection with the suits brought about [sic] the illegal and unauthorized wiretapping by DPS” [par. 97];

 

            (aa)  “Documents concerning the amount of money paid to plaintiffs in connection with the suits referenced in #97 above” [par. 98].

10.  It is found that the responsive records were located in several different departments within the Office of the Attorney General.  It is further found that, in order to respond to the request, described generally in paragraph 2, above, and specifically in paragraph 9, above, at least 10 members of the respondent’s legal staff, including the deputy attorney general and two associate attorneys general, searched for such records.  It is further found that such individuals collectively spent over 100 hours searching for and responding to such request, and that records responsive to such request were provided to the complainant on a “rolling basis,” as they were located, as described in paragraph 3, above.  It is found that the respondent conducted a thorough search for all records, responsive to the request described in paragraphs 9(a) through 9(aa), above, including computer searches, searches of the respondent’s computer server for deleted emails, searches of “hard files” for paper records, and, where applicable, searches of an off-site record storage facility.

 

11.  Based upon the foregoing, it is found that the respondent promptly provided all records responsive to the request described in paragraphs 9(a) through 9(aa), above, to the complainant.

 

12.  It is therefore concluded that, with regard to the records described in paragraphs 9(a) through 9 (aa), above, the respondent did not violate the FOI Act as alleged.

            13.  With regard to the following records, requested in the June 22 letter, the respondent claimed it provided all records responsive to such request, or, if such records were not provided, such records do not exist:

 

                        (a)  “Documents concerning any communications with Attorney John P. Shea (and/or his law office) at any time prior to his selection, as well as the contract with Attorney Shea after his apparent selection to represent the DPS and individual/employees.  This includes but is not limited to all contracts, amendment and correspondence” [par. 10];

 

                        (b)  “Documents concerning any inquiry and/or request by Attorney Shea and discussions with Attorney Shea concerning the items listed in # 11, above” [par. 13];

 

                        (c)  “Documents concerning authorization given to Attorney Shea to discuss the resolution of any matters including but not limited to the discussion of any monetary amount or other items of value or benefit in connection with any matter covered within the scope of any contract” [par. 14];

 

                        (d)  “Standards, policies, procedures, practices and documents concerning performance reviews of outside attorneys; This includes whether they are acting in the best interest of the state” [par. 17];

 

                        (e)  “Standards, policies, procedures, practices and documents concerning your role to represent the state, including in the event you contract with outside attorneys because you and/or members of the Attorney General’s Office have a conflict of interest.  As such, you continue to be responsible for reviewing and monitoring the performance of outside attorneys to ensure they are acting in the state’s best interest.  You are also responsible for contract compliance including reviewing, auditing and approving invoices and the fact you are apparently not supposed to have any influence over outside attorneys due to a conflict of interest” [par. 18];

 

                        (f)  “Standards, policies, procedures, practices, regulations and statutes concerning the Attorney General’s obligations and authority to resolve, settle or otherwise dispose of any matter where a claim may have been threatened and or made against any agency and or employee” [par. 22];

 

                        (g)  “Documents concerning representation and or advice provided by your office to DPS or any employee concerning an employee grievance” [par. 25];

 

                        (h)  “Standards, policies, procedures, practices and documents concerning the composition, structure and operation of your Litigation Management Committee” [par. 27];

 

                        (i)  “Documents concerning instances where you have refused to or ceased to represent DPS or any employee” [par. 33];

 

                        (j)  “Standards, policies, procedures, practices and documents concerning when you determine a conflict of interest has developed during your representation of an agency or employee” [par. 36];

 

                        (k)  “Standards, policies, procedures, practices and documents concerning a ‘Chinese Wall’ in your office to separate those assigned to your whistleblower unit from other members of your office.  This includes, but is not limited to, the segregation of your whistleblower unit from other units in your office whether the term ‘Chinese Wall’ is specifically used” [par. 41];

 

                        (l)  “Documents concerning the identity of any commissioner of a state agency who you were referring to during our meeting on February 14, 2007.  You stated that there were some (commissioners) no longer in their positions because of investigations you have done on their departments” [par. 42];

 

                        (m)  “Documents including, but not limited to, court decisions you referenced during our conversation on February 14, 2007 in regard to your ability to both represent and investigate state agencies.  You stated that when a reporter contacts your office and questions whether there is a conflict you tell them they can look it up because the courts have said you can do both: [par. 43];

 

                        (n)  “Standards, policies, procedures, practices, regulations, statues, court decisions and documents concerning which documents collected and or generated, including the handwritten notes of investigators, during the course of a DPS internal affairs investigation must be disclosed pursuant to an FOI request” [par. 48];

 

                        (o)  “Standards, procedures, policies, practices and  documents concerning matters you or members of the Attorney General’s Office become aware of, while performing your responsibilities pursuant to CGS: 29-2a, which are reportable to the Auditors of Public Accounts and or any other local, state or federal authority” [par. 50];

 

                        (p)  “Documents including but not limited to letters sent by you to the Governor concerning whistleblower complaints” [par. 63];

 

                        (q)  “Documents concerning the investigation conducted by the New York State Police into an allegation about my conduct including, but not limited to, documents provided to you by the New York State Police, the Connecticut State Police and myself” [par. 71];

 

                        (r)  “Documents concerning any knowledge by you or any member of the Attorney General’s Office that the New York State Police were going to or began an investigation as referenced in # 71 above” [par. 72];

 

                        (s)  “Documents concerning the investigation referenced in # 71 above including, but not limited to, was it sanctioned by or conducted under the authority of DPS or conducted as a DPS Internal Affairs” [par. 73];

 

                        (t)  “Documents concerning Major Christopher Arciero’s role in the investigation referenced in # 71 above.  The conduct of DPS and Major Arciero’s role in particular is the subject of a grievance, which is in arbitration; I filed in connection with the investigation referenced in # 71 above” [par. 74];

 

                        (u)  “Documents concerning when Major Arciero’s confronted me [sic] on October 4, 2006 and made it clear he was extremely upset with me because I had named him a respondent in the CHRO complaint” [par. 75];

 

                        (v)  “Documents concerning my written report to you that CHRO Referee stated ‘You guys would not believe the tremendous pressure I’m getting to resolve this case’” [par. 76];

                        (w)  “Documents concerning Attorney Dawn Hellier’s, an employee of the DPS, [sic] and Attorney Shea’s representation of DPS in connection with the grievance referenced in # 74 above” [par. 77];

 

                        (x)  “Documents made available to Attorney Hellier, concerning the investigation reference in # 71 above;  This includes but is not limited to correspondence, evidence and transcripts” [par. 78];

 

                        (y)  “Documents provided to Attorney Dawn Hellier concerning the investigation referenced in # 71 above” [par. 79];

 

                        (z)  “Documents concerning the two additional grievances I filed, which are also in arbitration, concerning two other Internal Affairs Investigations” [par. 80];

 

                        (aa)  “Documents concerning the authority under which the New York State Police conducted its investigation of the DPS including but not limited to whether DPS authorized the New York State Police to conduct an internal affairs investigation” [par. 92];

 

                        (bb)  “Documents about any difference concerning representation in your actions in the case mentioned in #93 above and your actions in the CHRO complaint of retaliation, my complaint of retaliation to you and your investigation or my whistleblower complaint” [par. 94];

 

                        (cc)  “Documents concerning any communications between you or members of the Attorney General’s Office and the New York State Police concerning the fact that you were defending Trooper Brian Marino in a lawsuit brought about the same incident the New York State Police were investigating [sic]” [par. 96];

 

                        (dd)  “Standards, policies, procedures, practices and documents concerning Associate Attorney Gundling’s role, responsibilities and authority in connection with your whistleblower unit; his role, responsibilities and authority in connection with your Litigation Management Committee; his role, responsibilities and authority in connection with any contracts approved and or entered into by your office; and his role, responsibilities and authority in connection with employment matters in your office” [par. 99].

 

            14.  With regard to the request described in paragraphs 13(a) through 13(dd), above, at the first hearing in this matter, the complainant testified he believed responsive records existed that still had not been provided to him.  According to the complainant, such belief was based on information that had been provided to him by Jeffrey Meyers, who was working as an investigator in the respondent’s whistleblower/healthcare fraud unit at the time of the request, described in paragraph 2, above.  Mr. Meyers testified, and it is found that, in an effort to assist the complainant with the complainant’s pending or potential legal actions against the Department of Public Safety (“DPS”) and the respondent, he [Meyers] in fact, authored the June 22 letter, described in paragraph 2, above, for the complainant’s signature.  However, Mr. Meyers testified, and it is found that, although he authored such letter, his decision to request the particular records identified in such letter was not based upon having actually seen the records requested in such letter, in many instances, but rather, the purpose of the letter was to try to “ferret out” whether or not such records existed.  Further, Mr. Meyers testified, and it is found that, he reviewed some, but not all of the records that were provided by the respondent to the complainant in response to the June 22 letter, and that he was unaware that, or whether, certain records might have been withheld from disclosure on the ground that an exemption existed for such records.  It is further found that, with respect to the request described in paragraphs 13(a) through 13(dd), Mr. Meyers was unable to state, at the hearing in this matter, whether there were any additional responsive records retained by the respondent that had not been provided to the complainant.

 

15.  Further, with regard to the request described generally in paragraph 2, above, and specifically in paragraph 13, above, it is found that such records were located in several different departments within the Office of the Attorney General.  It is also found that, in order to respond to the request, described in paragraphs 13(a) through 13(dd), above, at least 10 members of the respondent’s legal staff, including the deputy attorney general and two associate attorneys general, searched for such records.  It is further found that such individuals collectively spent over 100 hours searching for, and responding to, the request, described in paragraphs 13(a) through 13(dd), above, and that records responsive to such request were provided to the complainant on a “rolling basis,” as they were located, as described in paragraph 3, above.   It is found that the respondent conducted a thorough search for all records responsive to the request described in paragraphs 13(a) through 13(dd), above, including computer searches, searches of the respondent’s computer server for deleted emails, searches of “hard files” for paper records, and, where applicable, searches of an off-site record storage facility.

 

            16.  Thus, based upon the foregoing, it is found that, with regard to the request described in paragraphs 13(a) through 13(dd), the respondent promptly provided all responsive records to the complainant.

 

            17.  It is therefore concluded that the respondent did not violate the FOI Act, as alleged, with regard to the request described in paragraphs 13(a) through 13(dd),  above.

            18.  It is found that, with regard to the following records requested in the June 22 letter, the respondent withheld all records responsive to such request, claiming such records are exempt from disclosure under 1-210(b)(13) and 4-61dd, G.S.:

 

                        (a)  “Standards, policies, procedures, practices and documents concerning Associate Attorney General Gundling’s statement during our meeting on December 22, 2006, that your whistleblower unit is autonomous from other units in your office.  Specifically, when referencing your investigation of my claim of retaliation and the report which would be written, his statements that the whistleblower unit conducts independent investigations and send reports to him, in his position as Assistant Attorney General Menchel’s supervisor, and the only changes made to those reports are stylistic and for the purpose of making them easier for the press to read.  This includes, but is not limited, to, all drafts and edits of the report you issued on your investigation of my claim of retaliation” [par. 40];

 

                        (b)  “Standards, policies, procedures, practices and documents concerning matters you or members of the Attorney General’s Office became aware of, during your representation of an agency or employee, which is reportable to the Auditors of Public Accounts and or any other local, state or federal authority” [par. 49];

 

                        (c)  “Documents including but not limited to reports concerning whistleblower complaints received by your office and forwarded and or referred to the Auditors of Public Accounts” [par. 52];

 

                        (d)  “Documents including but not limited to reports concerning whistleblower complaints forwarded and or referred to you by the Auditors of Public Accounts” [par. 53];

 

                        (e)  “Documents concerning whistleblower complaints to which you assigned a case number” [par. 54];

 

                        (f)  “Documents concerning whistleblower complaints, which you recorded as opened” [par. 55];

 

                        (g)  “Documents concerning whistleblower complaints, which you recorded as closed” [par. 56];

 

                        (h)  “Documents including but not limited to letters containing referrals of whistleblower complaints sent to you by the Auditors of Public Accounts” [par. 59 and 60];

 

                        (i)  “Documents including but not limited to letters containing referrals of whistleblower complaints sent by you to the Chief State’s Attorney concerning whistleblower complaints” [par. 61 and 62];

 

                        (j)  “Documents including but not limited to letters received by you from the Governor concerning whistleblower complaints” [par. 64];

 

                        (k)  “Documents including but not limited to letters received by you from the Auditors of Public Accounts concerning complaints of retaliation” [par. 65];

 

                        (l)  “Documents including but not limited to letters sent by you to the Auditors of Public Accounts concerning complaints of retaliation” [par. 66];

 

                        (m)  “Documents concerning whistleblower complaints filed by members of the DPS about the DPS” [par. 67];

 

                        (o)  “Documents concerning whistleblower complaints filed about the DPS by others than employees of DPS” [par. 68];

 

                        (p)  “Documents concerning complaints of retaliation filed by members of the DPS about the DPS” [par. 69];

 

                        (q)  “Documents concerning complaints of retaliation filed about DPS by other than employees of DPS” [par. 70];

 

                        (r)  “Standards, policies, procedures, practices and documents concerning who you permit to be present at an interview conducted during the course of a whistleblower investigation.  This includes, but is not limited to, an attorney representing the person interviewed, a union representative, a representative from the agency where the individual is employed, an attorney employed by that agency, and outside attorney under contract with the state, an attorney representing a party other that [sic] the individual, and a member of the Attorney General’s Office not assigned to the whistleblower unit” [par. 82];

 

                        (s)  “Documents concerning any instance when you have permitted, other than the attorney representing the person being interviewed, any attorney or permitted any member of the Attorney General’s Office, other than those assigned to the whistleblower unit, be present during an interview conducted in the course of a whistleblower investigation” [par. 83];

 

                        (t)  “Standards, policies, procedures, practices and documents concerning who you permit to be present at an interview conducted during the course of an investigation into a complaint of retaliation.  Reference the listed of [sic] includes but is not limited to in #81 above” [par. 84];

 

                        (u)  “Documents concerning any instances when you have permitted, other than the attorney representing the person being interviewed, any attorney or permitted any member of the Attorney General’s Office, other than those assigned to the whistleblower unit, be present during an interview conducted during the course of an investigation into a complaint of retaliation” [par. 85];

 

                        (v)  “Documents concerning access given to Attorney Hellier to witnesses, transcripts and documents concerning your investigation of my complaint of retaliation or any complaint of retaliation or any whistleblower investigation” [par. 86];

 

                        (w)  “Documents concerning instances when transcripts and or recordings of interviews conducted during the course of a whistleblower investigation have been provided to anyone including the person interviewed and or their attorney” [par. 88];

 

                        (x)  “Documents concerning instances when transcripts and or recordings of interviews conducted during the course of an investigation of a claim of retaliation have been provided to anyone including the individual interviewed and or their attorney” [par. 89];

 

                        (y)  “Documents concerning the investigation conducted by the New York State Police, including but not limited to, transcripts and recordings” [par. 90];

 

                        (z)  “Documents concerning any whistleblower investigation of DPS you have conducted or are conducting” [par. 91];

 

                        (aa)  “Documents concerning your decision to represent Lieutenant Mark Newland in the CHRO complaint of retaliation brought against him at the same time you were apparently investigating a whistleblower complaint brought by the CHRO complainant about Lieutenant Newland’s actions and also at the same time apparently conducting an investigation of the CHRO complainants complaint to you that Lieutenant Newland had retaliated against them” [par. 93];

 

                        (bb)  “Documents about any difference concerning representation between the cases referenced in # 94 and #95 [sic] above and other whistleblower cases which are also the subject of CHRO claims of retaliation and also the subject of claims of retaliation which have been made to you” [par. 95];

 

            19.  Section 1-210(b)(13), G.S., provides “[n]othing in the Freedom of Information Act shall be construed to require disclosure of…[r]ecords of an investigation or the name of an employee providing information under the provisions of section 4-61dd.”

 

20.  Section 4-61dd(a), G.S., provides, in relevant part:

 

Any person having knowledge of any matter involving corruption, unethical practices, violation of state laws or regulations, mismanagement, gross waste of funds, abuse of authority or danger to the public safety occurring in any state department or agency or any quasi-public agency, as defined in section 1-120, or any person having knowledge of any matter involving corruption, violation of state or federal laws or regulations, gross waste of funds, abuse of authority or danger to the public safety occurring in any large state contract, may transmit all facts and information in his possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as he deems proper regarding such report and any other information that may be reasonably derived from such report....The Attorney General shall have power to summon witnesses, require the production of any necessary books, papers or other documents and administer oaths to witnesses, where necessary, for the purpose of investigation pursuant to this section.  Upon the conclusion of the investigation, the Attorney General shall where necessary, report any findings to the Governor, or in matters involving criminal activity, to the Chief State's Attorney.  In addition to the exempt records provision of section 1-210, the Auditors of Public Accounts and the Attorney General shall not, after receipt of any information from a person under the provisions of this section, disclose the identity of such person without such person’s consent unless the Auditors of Public Accounts or the Attorney General determines that such disclosure is unavoidable, and may withhold records of such investigation, during the pendency of the investigation (emphasis added).

 

            21.  The respondent contends that, because the records described in paragraphs 18(a) through 18(bb), above, are, on their face, records of an investigation conducted pursuant to 4-61dd, G.S., they are thus exempt from mandatory disclosure under that section and 1-210(b)(13), G.S.   In support of its position, the respondent relies on Barlow v. State of Connecticut, Office of the Attorney General, Docket #FIC 2004-561 (Final Decision, July 27, 2005).  In Barlow, the complainant sought records of a whistleblower investigation she allegedly initiated as a whistleblower.  The OAG moved to dismiss the complaint[2], claiming the records were exempt from disclosure, on their face, by virtue of 4-61dd and 1-210(b)(13), G.S.  The Commission granted the OAG’s motion, concluding that it lacked jurisdiction over the allegations.

 

            22.  It is found that, since Barlow was decided, 4-61dd, G.S., was amended by P.A. 05-287, thus rendering that decision inapposite.  The amendment, which became effective July 13, 2005, added the provision in 4-61dd, G.S., emphasized above, that the respondent may withhold records of an investigation only during the pendency of the investigation.

 

            23.  It is found that the respondent offered testimony, at the hearing in this matter, that “whistleblower files are never, quote/unquote, closed, like a case or litigation.”  “There’s always new evidence [that] could come in or new witnesses that could come forward that could advance the investigation.”

 

            24.  It is found that the respondent’s position, i.e., that its whistleblower investigations are always pending, if credited, would render the language added by P.A. 05-257, to 4-61dd, G.S., meaningless.

            25.  It is found that only a portion of the request described in paragraph 18(z), above, on its face, would appear to require the respondent to disclose records of a pending whistleblower investigation.  To that extent, it is found that any records retained by the respondent, responsive to such request, are exempt from disclosure pursuant to 1-210(b)(13) and 4-61dd, G.S.

 

            26.  However, it is found that the respondent offered no evidence at the hearing in this matter, and therefore failed to prove, which, if any, of the remainder of the records responsive to the requests described in paragraphs 18(a) through 18(bb), above, relate to whistleblower investigations that were pending at the time of the June 22 request.  It is therefore found that the respondent failed to prove that such records are exempt from disclosure under 4-61dd and 1-210(b)(13), G.S.  

 

            27.  Based upon the foregoing, it is concluded that the respondent violated the FOI Act by failing to comply with the requests for records described in paragraphs 18(a) through 18(bb), above, with the exception of the records responsive to that portion of paragraph 18(z), as noted in paragraph 25, above.

 

            28.  With regard to the remaining records, requested in the June 22 letter, the respondent provided certain responsive records, and claimed an exemption for certain other records.  At the hearing officer’s request, the respondent submitted those records claimed exempt for an in camera inspection.  Such in camera records shall be identified herein as IC 2008-524-0001 through IC 2008-524-1101.

 

            29.  It is found that the in camera records consist generally of emails between, and among, assistant and associate attorneys general, letters, notes, drafts, and memos, relating, generally, to whistleblower investigations and investigations of complaints of retaliation.  The respondent claims such records are exempt from disclosure pursuant to 1-210(b)(4), 1-210(b)(13), 4-61dd, 1-210(b)(1), and 52-146r, G.S.

 

            30.  With regard to the 1-210(b)(4), G.S., claim of exemption, the respondent contends such exemption applies to 137 of the 1101 in camera records. 

 

            31.  Section 1-210(b)(4), G.S., provides, in relevant part, that “[n]othing in the Freedom of Information Act shall be construed to require 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” (emphasis added).

 

            32.  After careful review of the in camera records, it is found that the following records are exempt from disclosure pursuant to 1-210(b)(4), G.S.:  IC 2008-524-0004 and 0005; IC 2008-524-0006 and 0007; IC 2008-524-0008; IC 2008-524-0058 and 0059; IC 2008-524-0062; IC 2008-524-0063 and 0064; IC 2008-524-0065 and 0066; IC 2008-524-0067 through 0070; IC 2008-524-0086 and 0087; IC 2008-524-0088; IC 2008-524-0116 and 0117; IC 2008-524-0118 through 0120; IC 2008-524-0121 through 0123; IC 2008-524-0133 and 0134; IC 2008-524-0135; IC 2008-524-0136; IC 2008-524-0137 and 0138; IC 2008-524-0141 and 0142; IC 2008-524-0207; IC 2008-524-0278 and 0279; IC 2008-524-0287 through 0291; IC 2008-524-0336 through 0338; IC 2008-524-0339 through 0342; IC 2008-524-0346 and 0347; IC 2008-524-0348 through 0350; IC 2008-524-0351 through 0354; IC 2008-524-0355 through 0357; IC 2008-524-0358 through 0360; IC 2008-524-0361 through 0364; IC 2008-524-0369 through 0370; IC 2008-524-0371 and 0372; IC 2008-524-0374 through 0376; IC 2008-524-0378 through 0380; IC 2008-524-0381 through 0383; IC 2008-524-0384 through 0386; IC 2008-524-0406 and 0407; IC 2008-524-0424 and 0426; IC 2008-524-0447; IC 2008-524-0449 through 0483; IC 2008-524-0494 through 0496; IC 2008-524-0497; IC 2008-524-0498 through 0501; IC 2008-524-0502; IC 2008-524-0503 and 0504; and IC 2008-524-0505.

 

            33.  It is therefore concluded that, with regard to the in camera records described in paragraph 32, above, the respondent did not violate the FOI Act by withholding such records from the complainant.

 

            34.  With regard to the remainder of the records the respondent claimed exempt from disclosure on the index to the in camera records, pursuant to 1-210(b)(4), G.S., it is found that many of such records relate to the investigation of the complainant’s whistleblower and whistleblower retaliation complaints, which were completed and therefore are no longer pending, and to the complainant’s retaliation complaint filed with CHRO against DPS, which was withdrawn by the complainant in 2007.  Thus, with respect to these records and the remainder of the in camera records described in paragraph 30, above, and not found to be exempt from disclosure in paragraph 32, above, it is found that the respondent offered no evidence, and therefore failed to prove, that such records relate to strategy and negotiation with respect to a pending claim or pending litigation, within the meaning of 1-210(b)(4), G.S. 

 

            35.  With regard to the 1-210(b)(13) and 4-61dd, G.S., claims of exemption, it is found that the respondent contends such exemptions apply to 233 of the 1101 in camera records.  After careful review of such records, and consideration of the evidence produced at the hearing in this matter, it is found that the respondent failed to prove such records are records of pending whistleblower investigations, within the meaning of such statutes.  It is therefore found that such records are not exempt from disclosure pursuant to 1-210(b)(13) and 4-61dd, G.S.

 

            36.  It is therefore concluded that the respondent violated the FOI Act by failing to provide copies, to the complainant, of all records claimed exempt on the in camera index, pursuant to 1-210(b)(13) and 4-61dd, G.S.

 

            37.  With regard to the 1-210(b)(1), G.S. claim of exemption, the respondent contends such exemption applies to 51 of the 1101 in camera records. 

 

            38.  Section 1-210(b)(1), G.S., provides, in relevant part, that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of…[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure…” (emphasis added).

 

            39.  After careful review of such records, and consideration of the evidence produced at the hearing in this matter, it is found that the respondent failed to prove the applicability of 1-210(b)(1), G.S., to the in camera records claimed exempt on the in camera index.  Specifically, it is found that the respondent offered no evidence at the hearing in this matter that it had conducted the required balancing test, and determined that the public interest in withholding the in camera records at issue clearly outweighed the public interest in disclosure of such records.

 

            40.  Based upon the foregoing, it is concluded that the respondent violated the FOI Act by failing to provide copies, to the complainant, of all records claimed exempt on the in camera index, pursuant to 1-210(b)(1), G.S.

 

            41.  With regard to the 52-146r, G.S., claim of exemption, the respondent contends such exemption applies to all 1101 of the in camera records, with the exception of IC 2008-524-0003, IC 2008-524-0022, IC 2008-524-0023, and IC 2008-524-0077.

 

            42.  Section 52-146r, G.S., prohibits disclosure of confidential communications between a government attorney, and public official or employee of a public agency, and provides, in relevant part, that:

 

“[i]n 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.”

 

43.  The applicability of the exemption contained in 52-146r, G.S., is governed by established Connecticut law defining the privilege.  That law is set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, the Supreme Court stated that 52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

 

 44.  Section 52-146r(2), G.S., defines “confidential communications” 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. . . .

 

45.  The Supreme Court has also stated that “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.”  Maxwell, supra at 149.

 

46.  The Commission takes administrative notice of the distinct duties required of the respondent by the legislative mandates of 4-61dd, G.S., which obligates the respondent to investigate whistleblower and whistleblower retaliation complaints, and 3-125 and 5-141d(b), G.S., which require the respondent to provide legal representation to state agencies and their employees who are the subject of whistleblower and whistleblower retaliation complaints.[3]  It is found that, in performing its duty to investigate under the whistleblower statute, the respondent does not have a “client” in the traditional “attorney-client” sense. 

 

47.  It is found that the in camera records consist of emails, between and among assistant and associate attorneys general, in which they consulted with one another regarding whistleblower investigations and investigations of complaints of retaliation, and proposed changes to internal policies of the respondent relating to the conduct of whistleblower investigations.  It is found that the majority of such records relate to the respondent’s duty under 4-61dd, G.S., to investigate whistleblower and whistleblower retaliation complaints, rather than to its duty to represent a state agency client, under 3-125 and 5-141d(b), G.S.   To the extent that any in camera records consist of communications between outside counsel or a client, and assistant/associate attorneys general, or to the respondent’s duties under 3-125 or 5-141d(b), G.S.,  it is found that the respondent failed to prove that such communications relate to legal advice sought by or on behalf of the agency from such attorney, or that such legal advice was sought in confidence.

 

48.  In its post-hearing brief to the Commission, counsel for the respondent argues that the attorney-client privilege applies to the emails at issue because such privilege extends “to an attorney’s supervisors and attorneys in the same agency who consult on a case in order to represent the client.”  In addition, the respondent takes the position that, in some instances, the attorney general is the client, and the assistant and associate attorneys general are his attorneys.   

 

49.  The Commission is not persuaded that the attorney general is a client of his staff, or that any of the emails pertain to legal advice sought by a public agency from its attorney. 

 

50.   After careful review of the in camera records, and consideration of their nature, it is found that the respondent failed to prove that any of the in camera records contain confidential communications, that were made in the course of a professional relationship that exists between an attorney at the attorney general’s office, and his or her public agency client, that relate to legal advice sought by the agency, from such attorney.   It is therefore found that none of the in camera records are exempt from disclosure pursuant to 52-146r, G.S.

 

            51.  It is concluded, based upon the foregoing, that the respondent violated the FOI Act in failing to disclose to the complainant all records claimed exempt pursuant to 52-146r, G.S., on the in camera index.

 

            52.  It is therefore concluded that the respondent violated the FOI Act in failing to provide copies of the records, described in paragraph 50, above, to the complainant.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondent shall forthwith provide the complainant with a copy of the records described in paragraphs 18, 34, 35, 39, and 50 of the findings, above, free of charge.

 

2.  In complying with paragraph 1 of the order, above, the respondent may redact the identity of any whistleblower contained in such records.  In addition, the respondent may withhold from disclosure any records responsive to paragraph 18(z) of the findings, above, that relate to a pending whistleblower investigation.

 

3. The commission notes that the in camera records include information that is not responsive to the request described generally, in paragraph 2, above, and specifically, in each of the numbered paragraphs in the complainant’s June 22 letter.  To the extent that such information is found not to be exempt from disclosure, the respondent may wish to redact such information.

 

4. Henceforth, the respondents shall strictly comply with the provisions of 1-210(a), and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 22, 2009.

 

____________________________

S. Wilson

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Andrew N. Matthews

C/o Norm Pattis, Esq.

649 Amity Road

Bethany, CT 06524

 

State of Connecticut,

Office of the Attorney General

C/o Susan Quinn Cobb, Esq. and

Philip Miller, Esq.

Assistant Attorneys General

55 Elm Street

P.O. Box 120

Hartford, CT 06141

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-524FD/sw/7/24/2009

 



[1] Numbered paragraph references are to the numbered paragraphs in the complainant’s June 22 letter.

[2] The OAG moved to dismiss pursuant to 1-206(b)(4), G.S., which provides that the Commission may “dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the [FOI] Act, or (B) the agency has committed a technical violation of the [FOI] Act that constitutes a harmless error…”

[3] Section 3-125, G.S, requires the Attorney General to “appear for the state…in all suits and other civil proceedings, except upon criminal recognizances and bail bonds, in which the state is a party or is interested, or in which the official acts or doings of said officers are called in question….”  Section 5-141d(b), G.S, provides that the “state, through the Attorney General, shall provide for the defense of any …state officer [or] employee…in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer [or] employee…was acting in the discharge of his duties or in the scope of his employment….”