Attorney General: Honorable Gene Gavin, Department of Revenue Services , 2001-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 9, 2001

Honorable Gene Gavin
Commissioner
Department of Revenue Services
25 Sigourney Street
Hartford, CT 06106

Dear Commissioner Gavin:

By letter of June 14, 2000, the Department of Revenue Services ("DRS") requested an opinion from my office as to whether a telephone recording system ("the system"), which the Collections and Enforcement Division ("C&E") of the DRS intends to implement, is in compliance with Conn. Gen. Stat. § 52-570d(a). Your agency also asked several other questions relating to implementation of the system. Please be advised that this office has particular concern with the failure of the proposed telephone system to have an automated notification audible to both parties on outgoing calls. This system may be legally implemented only if the Department can insure that all parties to every telephone call will receive notification that the call will be recorded whether the call is incoming or outgoing.

Conn. Gen. § 52-570d(a) provides as follows:

Sec. 52-570d. Action for illegal recording of private telephonic communications. (a) 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 begining and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.

This statue was discussed by the court in Washington, et al. v. Meachum, 238 Conn. 692, 680 A.2d 262, (1996). The court stated that:

In 1990, the legislature adopted the recording statute, § 52-570d, in an effort to strenghten the privacy protections afforded to Connecticut's citizens. It required that recording by officials not involved in law enforcement be done with the knowledge of both parties. Public Acts 1990, No. 90-305. Then Senator Richard Blumenthal described the purpose of the bill that would become the recording statute. He stated: "The effect of this bill ... would be to prohibit tape-recorded conversations unless done by the knowlege of all parties to those telephonic conversations. Currently, under law, the teleponic conversation can be taped with the knowledge of one party [to] the conversation." (Emphasis added.) 33 S.Proc., Pt. 5, 1990 Sess., p. 1415.

Id. at 272.

The purpose of this statute, therefore, is to strengthen the privacy protections afforded to Connecticut citizens by prohibiting recording of telephone conversations unless done with the knowledge of all parties to the conversation. The statute provides three alternative ways to make sure that the non-recording party is aware that the conversation is being recorded. As described in your letter, C&E intends to make callers aware that the conversation is being recorded by including "a recording to be played for all incoming telephone calls advising callers that their call may be recorded" and by orally advising "recipients of all outgoing calls that their calls may be recorded." Our concern is that the proposed system does not provide automated notification to the recipients of outgoing calls, but instead relies upon Department employees to give this notificaiton at the beginning of outgoing calls. Department employees may forget to give this notice.

If such automated notification is given at the beginning of all outgoing calls and such notification is recorded at the beginning of the communications, these methods of notification would comply with the second alternative method of notification under the statute and would not conflict with the requirements of Conn. Gen. Stat. § 52-570d. We would like to point out, however, that since the recording system will be taping conversations of DRS employees, the DRS must also comply with Conn. Gen. Stat. § 31-48d as well as § 52-570d. This section requires that written notice be given to each employee whose conversations will be monitored and the posting of notices regarding the monitoring.

The second question posed by the DRS asked whether the recordings would be "deemed public records for FOI purposes?" Section 1-200(5) of the General Statutes states that:

(5)        "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, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

Id. (emphasis added).

Therefore, the recordings would be "deemed public records for FOI purposes." However, it is important to emphasize that if the subject matter of the conversations with members of the public falls within the scope of any of the specific exemptions to the application of the Freedom of Information Act set forth in Conn. Gen. Stat. §1-210, even though they would be public records, they may be withheld. For instance, Conn. Gen. Stat. §1-210(b)(10) exempts from disclosure tax returns and "statements exempted by federal law and state statutes." Therefore, all of the limitations upon disclosure of confidential tax information contained in Conn. Gen. Stat. §12-15 of the general statutes would apply to these recordings.

The next question asked is, "Would recordings of calls between DRS employees, or between DRS employees and other state employees, be subject to FOI or discovery requests?"

The answer to this question is yes, unless the subject matter of these recordings falls within the ambit of one of the specific exemptions to the application of the Freedom of Information Act set forth in Conn. Gen. Stat. §1-210 or within the ambit of one of the privileges of non-disclosure recognized under Connecticut law.

The DRS's next question is "Would recordings of calls between C&E and employees of the Attorney General’s Office or the Department’s Legal Division be protected by the attorney client privilege and, if so, would each call have to be prefaced by the statement ‘this call is protected by the attorney client privilege'?"

The answer to this question would depend upon whether the conversation falls within the scope of the privilege and not upon whether or not it is prefaced by the statement included in your question. Not all conversations with attorneys fall within the scope of the privilege.

As the Court stated in Pagano, et al. v. Ippoliti, et al., 245 Conn. 640, 716 A.2d 848 (1988):

The attorney-client privilege applies to communications:  (1) made by a client;  (2) to his or her attorney;  (3) for the purpose of obtaining legal advice;  (4) with the intent that the communication be kept confidential. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 12.5.1, p. 4411

Id.at 245 Conn. 649 (emphasis added).

The next question is whether, "Based on the attached copy of a memo from Eunice DiBella, Public Records Administrator, to Kevin Forsa of DRS, does your office concur that a 30-day retention period for the recordings is legally valid?"

Under Conn. Gen. Stat. §§11-8 and 11-8a, all state agencies are required to submit to the Public Records Administrator proposed retention schedules of public records, for her approval, based upon the administrative need of retaining such records. Eunice DiBella, the Public Records Administrator, by her April 6 memo to Kevin Forsa has approved the 30-day retention schedule for the recordings based upon their use for quality assurance. We concur, therefore, that this retention period is legally valid, if as Ms. DiBella states in her memo, "... your department has determined they do not belong with the taxpayer’s file."

The last two questions are as follows:

If a DRS employee forgets to advise someone on an outgoing call that the call may be recorded, would that constitute a privacy right violation?
And finally, if there is a privacy right violation, is the employee responsible for the violation (for example, the employee who failed to warn of the recording) individually liable for such violation, and to what extent is the Department or State liable for such violation?

Conn. Gen. Stat. §52-570d(a) makes it illegal for any person to record a telephone conversation unless the requirements of that statute are observed. Therefore, if a "DRS employee forgets to advise someone on an outgoing call that the call may be recorded" that would constitute a violation of that person’s privacy rights under the statute.

Conn. Gen. Stat. §52-570d(c) states that:

(c)    Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorney’s fee.

Therefore, the person whose conversation was illegally recorded would have the right to bring an action to recover damages for such violation. However, depending on the facts of a particular case, the employee responsible for the violation may not be personally liable for such violation, but the State may be liable for such actions.

Conn. Gen. Stat. §4-165 provides as follows:

Sec. 4-165. Immunity of state officers and employees from personal liability. No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.

We trust that this answers all of the questions raised by your agency regarding the proposed telephone recording system, and that you will take the appropriate actions necessary to ensure that everyone’s privacy rights are fully protected.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert L. Klein
Assistant Attorney General

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1In this context it should be noted that the legislature has recently codified the attorney client privilege as it relates to confidential communications between a government attorney and public officials and employees of public agencies in Public Act No. 99-179 §1. Section 1(2) of that act defines confidential communications to mean:

(2) "Confidential communications" means 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.

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