Attorney General: Jaekle and Johnston, Auditors of Public Accounts, 2001-019 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 30, 2001

Robert G. Jackle
Kevin P. Johnston
Auditors of Public Accounts
State Capitol
Hartford, CT 06106-1559

Dear Messrs. Jaekle and Johnston:

You have requested our advice regarding your obligations under Conn. Gen. Stat. § 4-61dd, known as the "whistleblower" statute. You have explained that, in the course of reviewing a whistleblower complaint, you have obtained access to client records from the Office of Protection and Advocacy. You believe that those records are confidential pursuant to Conn. Gen. Stat. § 46a-11c. In light of your statutory obligation to assist the Attorney General in whistleblower investigations, you would like to share the records with the Office of the Attorney General. You are uncertain whether you may do so, however, because Conn. Gen. Stat. § 2-90(h) requires you to protect the confidentiality of information that you obtain from state agencies. It is my opinion that you are statutorily authorized to disclose the records to the Office of the Attorney General.

Section 4-61dd of the Connecticut General Statutes obligates the Auditors of Public Accounts to review allegations of corruption, mismanagement, abuse of authority, or unethical or illegal practices by state agencies. After conducting their review, the Auditors must report their findings and recommendations regarding the matter to the Attorney General. The Attorney General shall then investigate the allegations as he deems proper, and the Auditors may assist in that investigation. The Attorney General is also empowered "to summon witnesses [and] require the production of any necessary books, papers or other documents." Id. At the conclusion of an investigation, the Attorney General shall, where necessary, report his findings to the Governor or to the Chief State’s Attorney, if criminal activity has been discovered.

A separate statute, Conn. Gen. Stat. § 2-90(h), requires the Auditors to respect any statutory confidentiality requirement imposed on information that is provided to them for auditing purposes. That statute provides in relevant part:

Where there are statutory requirements of confidentiality with regard to such records and accounts or examinations of nongovernmental entities which are maintained by a state agency, such requirements of confidentiality and the penalties for the violation thereof shall apply to the Auditors and to their authorized representatives in the same manner and to the same extent as such requirements of confidentiality and penalties apply to such state agency.

Although records of an investigation of a whistleblower complaint are exempt from disclosure under the Freedom of Information Act, Conn. Gen. Stat. § 1-210(b)(13), there is no statute parallel to § 2-90(h) which expressly requires the Attorney General to protect confidential information that has been made available to him.

In interpreting statutes, "[i]t is fundamental . . . to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. . . ." Napoletano v. Cigna Healthcare of Connecticut, Inc. 238 Conn 216, 234 (1996)(internal citations omitted). Additionally, "it is basic that common sense must be used in statutory construction and that a statute should not be interpreted in any way to thwart its purpose or so as to lead to absurd consequences and bizarre results." Keeney v. Fairfield Resources, Inc. 41 Conn. App. 120 (1996)(internal citations omitted).

The responsibility for conducting investigations into whistleblower complaints rests jointly with the Auditors and the Attorney General. The Auditors conduct an initial investigation on a complaint and report their findings to the Attorney General. The Attorney General then conducts further investigation as necessary, assisted as needed by the Auditors. Conn. Gen. Stat. § 4-61dd. The statutory scheme thus envisions an interactive relationship between the Auditors and the Attorney General in the investigative process. It would be absurd to conclude that the Auditors may not provide confidential information relevant to an investigation to the Attorney General, or that the requirement to respect the confidential nature of information received ends once it is shared with the Attorney General. This conclusion is supported by the fact that the General Assembly has expressly empowered the Attorney General to compel the production of documents, and also exempted the records of whistleblower investigations from public disclosure.

The legislative history of Conn. Gen. Stat. § 4-61dd also demonstrates that the General Assembly intended for the Auditors to share all information pertinent to a whistleblower complaint with the Attorney General. Originally, the Auditors of Public Accounts had nothing to do with whistleblower complaints. The first whistleblower statute, enacted in 1979, required all whistleblower complaints to be submitted directly to the Attorney General and made him solely responsible for the investigation of those complaints. That legislation also exempted the records of all such investigations from disclosure under the Freedom of Information Act. 1979 Conn. Pub. Acts 79-599.

In 1985, the General Assembly created the Office of the Inspector General "to detect and prevent fraud, waste and abuse in the management of state personnel, in the use and disposition of public property, and in the collection, disbursement and expenditure of state and federal funds . . .[and to] evaluate the economy, efficiency and effectiveness of state agencies in the performance of their delegated duties and functions." 1985 Conn. Pub. Acts No. 85-559, §1. That public act provided that the Inspector General was to be appointed by the Auditors of Public Accounts, and it transferred to him the duty of investigating whistleblower complaints. It also contained a provision, parallel to § 2-90(h), quoted above, that required the Inspector General to maintain the confidentiality of statutorily protected information. Id. at § 4(d).

In 1987, the General Assembly abolished the Office of the Inspector General and enacted the current version of the whistleblower statute. 1987 Conn. Pub. Acts No. 87-442, § 1, § 7. That public act also provided for the transfer of all employees and records of the Office of the Inspector General to the Attorney General. Id. at § 4. The floor debate on this legislation clearly shows that the General Assembly intended for the Auditors of Public Accounts and the Attorney General to share responsibility for whistleblower investigations, and also intended for those public officials to preserve the continuity of that function. Senator O’Leary explained:

This statute amends a section of the "whistleblower" statute to place that portion of it which was formerly within the purview of the Inspector General . . . [into] the office of the Attorney General and the office of the Auditor. It also transfers the function of the Inspector General into the Auditor’s branch and the Attorney General.

It sends the employees . . . in the Inspector General’s office into the office of the Attorney General. It sends the records currently being worked on by that office, also, into the office of the Attorney General.

30 Conn. S. Proc., pt. 13, 1987 Sess. 4481-82 (May 27, 1987). Senator O’Leary repeatedly emphasized that the reorganization was not intended to alter or curtail the scope of whistleblower investigations. He asserted:

[T]his is not an elimination of the responsibility of the function, it’s a transfer. And it’s a transfer with the records. So that any investigation which is ongoing can continue and I would hope it could continue in a more efficient and perhaps a better manner because of the size and capacity of the Auditor’s Department and the Attorney General’s Department.

Id. at 4492-93.

The foregoing statements help clarify that the General Assembly intended that the Auditors and Attorney General would share responsibility for whistleblower investigations and that the Attorney General would have complete access to any information pertaining to a whistleblower allegation. Therefore, the Auditors of Public Accounts should freely provide to the Attorney General all the information they have obtained in the course of reviewing a whistleblower complaint. Their failure to do so would contravene the legislative intent of § 4-61dd.

Although no specific confidentiality provision pertaining to the Attorney General was included in P.A. 87-442, the legislature may have assumed that such a provision was unnecessary, both because records of whistleblower investigations have been exempt from public disclosure since 1979, and because the Auditors are already required to maintain the statutory confidentiality of all records they receive in the course of their whistleblower investigations. Because the roles of the Auditors and Attorney General are to be cooperative throughout the entire course of the investigation, the statutory scheme must be read to require the Attorney General to keep records received from the Auditors confidential to the same extent as the Auditors are required to do.

I trust this answers your inquiry.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Heather J. Wilson
Assistant Attorney General

RB/HJW


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