Attorney General: Honorable Larry R. Meachum, Department of Correction, 1991-039 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 30, 1991

Honorable Larry R. Meachum
Commissioner
340 Capitol Avenue
Hartford, Connecticut 06106

Dear Commissioner Meachum:

You have requested our advice on the applicability of 1990 Public Acts No. 90-304, now codified in Conn. Gen. Stat. 52-570d, to the Department of Correction. You specifically ask whether an official of the Department of Correction is a criminal law enforcement official for purposes of the exception contained in subsection (b)(1) of Conn. Gen. Stat. 52-570d. Our answer to the question is no.

As background to your question, you advised us that you propose to install a recording system which will record all inmate telephone calls originating from the inmate telephones at all level three and higher correctional facilities. The inmate telephones permit inmates to make collect telephone calls to outside of the correctional facility. The purposes of the recording system are to gather information on inmate activities to ensure security of the correctional institutions and to prevent inmates from pursuing criminal enterprises from within the correctional facilities. Inmates will be required to give prior written consent to the recording. Moreover, the policy will be included in the inmate handbook and posted at the locations of the telephones.1 Separate unrecorded telephones will be available for telephone calls to attorneys and inmates will be notified of their availability.

Conn. Gen. Stat. 52-570d prohibits the "recording" of an oral private telephonic communication unless certain specified conditions are satisfied. Subsection (a) of Conn. Gen. Stat. 52-570d provides as follows:

No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically provides a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use. (Emphasis added).

It is thus clear that this statute requires consent or notice to all parties and not simply one party.

Subsection (b) of Conn. Gen. Stat. 52-570d provides for some exceptions to the provisions of subsection (a). It states in relevant part as follows:

The provisions of subsection (a) of this act shall not apply to: (1) any federal, state, or local criminal law enforcement official who in the lawful performance of his duties records telephonic communications...

Conn. Gen. Stat. 52-570d does not define what constitutes a criminal law enforcement official and the legislative history offers no guidance as to the intent of the legislature in employing the phrase. John J. Kelly, Chief State's Attorney, spoke in opposition to the bill at the committee hearings. He expressed his concern over the lack of a clear definition as to what is meant by a criminal law enforcement official. Joint Standing Committee Hearings, Judiciary, Part 4, 1091-92 (1990). No attempts were made, however, to correct this deficiency.

Subsection (b)(1) of Conn. Gen. State. 52-570d, requires the criminal law enforcement official to be acting in the lawful performance of his duties at the time the recording takes place in order for the exception to apply. Criminal law enforcement officials are responsible for the prevention or detection of crime and enforcement of the general criminal laws of the state. See, e.g., State v. Concaugh, 170 Conn. 95, 99, 365, A.2d 395 (1976). A review of the statutory authority of the Department of Correction, pursuant to Conn. Gen. Stat. 18-7, et seq., does not indicate that it encompasses criminal law enforcement functions such as the prevention or detection of crime. Compare e.g., Conn. Gen. Stat. 29-7 (Powers and Duties of [State Police] Force).

Where a statute does not define a phase, and the legislative history does not provide adequate guidance, we may look elsewhere for an appropriate meaning. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). The meaning given the same phrase in an unrelated statute may be consulted for guidance. Id. The phrase "law enforcement officer" is defined in the Connecticut wiretap statutes, Conn. Gen. Stat. 54-41a, et seq., to mean "any officer of any organized police department of this state or of the state police of any other state, an official of the Federal Bureau of Investigation, Drug Enforcement Administration or the United States Custom Service, or the United States attorney for the district of Connecticut or a person designated by him in writing to receive the contents of any wire communication or evidence derived there from." It is clear that under this definition, an official of the department of correction would not be considered a law enforcement official and would therefore be excluded from the exception specified in subsection (b)(1) of Conn. Gen. Stat. 52-570d.

Although the recording system you propose to install is modeled after a similar system now in use by the Federal Bureau of Prisons, we must advise you that under federal law, consent of or notice to one of the parties to the telephone call is sufficient to make a recording of that call lawful. 18 U.S. C. 2511 (2) (c); U.S. v. Willoughby, 860 F.2d 15 (2d Cir. 1988); U.S. Amen, 831 F.2d 373, 379 (2d Cir. 1987), cert. denied, 485 U.S. 1020, 108 S.CT. 1573, 99 L.Ed. 2d 888 (1988). Connecticut law requires, however, compliance with the requirements set forth in subsection (a) of Conn. Gen. Stat. 52-570d. Under the system you propose, prior consent of an inmate is readily obtainable but the prior consent of or notice to all persons to whom the inmate might make a telephone call is unlikely. Accordingly, one of the methods specified in subsection (a) of Conn. Gen. Stat. 52-570d must be used to notify all the parties that their telephone conversation is being recorded.

Based on the foregoing discussion, it is our opinion that an official of the department of correction is not a criminal law enforcement official for purposes of subsection (b)(1) of Conn. Gen. Stat. 52-570d and therefore you must comply with the requirements of subsection (a) of the statute.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henri Alexandre
Assistant Attorney General

RB/HA/ec


1 It should be noted that in the context of this advisory opinion, we do not express an opinion on whether an inmate can make a valid claim that consent under the circumstances you described, may be deemed to be coerced.


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