Attorney General: Susan G. Townsely, Division of Special Revenue, 2002-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 24, 2002

Susan G. Townsely
Executive Director
Department of Revenue Services
Division of Special Revenue
555 Russell Road, P.O. Box 11424
Hartford, CT 06111

Dear Ms. Townsley:

You requested an opinion from this office regarding a complaint that was made under the whistleblower statute, Conn. Gen. Stat. 4-61dd. The Division of Special Revenue ("the Division") received a copy of a letter that was filed with the Auditors of Public Accounts under Conn. Gen. Stat. 4-61dd. The Division has initiated its own internal investigation into the allegations set forth in the letter. One of the Division's employees, who believes that she has been accused of possible wrongdoing in the letter, has requested a copy of "any documents, notes, or materials, which are the basis for [the Division's] investigation." The Division has requested an opinion from this office on the following issues:

  1. What information may we disclose to the employee?
  2. What documentation may be provided to the employee?
  3. When may the Division disclose such information or documentation?
  4. When must the Division disclose such information or documentation?
  5. In what form may the Division provide any such information or documentation (e.g. Must certain parts of the letter be redacted)?
  6. If the Division can provide a copy of the letter or any other documentation, will your office do the actual redacting or will it review a document redacted by Division personnel?
  7. When the investigation by the Division is completed, who, if anyone, may receive copies of the report?
  8. Will your office perform its own investigation?

We conclude that if disclosure of the requested documents would reveal the identity of the whistleblower, the documents should not be disclosed to anyone other than the Auditors of Public Accounts and the Office of the Attorney General. However, the Division retains the discretion to release the information in redacted form if the Department assures itself that the whistleblower's identity will not be revealed or discerned from the information that is released.1

This opinion is based on the public policy and legislative intent to protect the identity of whistleblowers. The legislative intent is demonstrated by the simultaneous passage of the whistleblower statute which prohibits disclosure of a whistleblower's identity "without his consent" or unless disclosure is "unavoidable," and section 1-210(b)(13) of the Connecticut Freedom of Information Act ("FOIA"), which exempts from disclosure records of a whistleblower investigation or the name of an employee providing information under the whistleblower statute. The whistleblower in this case states in the letter of complaint to the Auditors of Public Accounts, "I am filing this complaint under the protection of the Whistle Blower Act."

Additionally, there is no legal theory or necessity that overrides the statutory protection afforded to a whistleblower at this stage of the investigation. There is currently no due process duty to disclose because the request for disclosure has been made at the investigatory stage and the alleged wrongdoer has not been terminated, suspended or arrested. If the whistleblower investigation results in the termination or suspension of an employee, or the arrest of the alleged wrongdoer, the Due Process Clauses of the federal and state Constitutions may then require disclosure to the extent necessary to inform the accused of the charges against him or her and allow for a proper defense. However, since there has been no determination at this stage that an employee will be terminated, suspended or arrested, there is no due process right requiring disclosure.

With regard to your last question, the extent of this Office's investigation will be determined after a thorough review of the whistleblower complaint, the investigative report completed by the Division, and the report of the Auditors of Public Accounts.

Discussion

A. The records requested are exempt from disclosure.

The whistleblower complaint in this case was submitted to the Auditors of Public Accounts pursuant to the whistleblower statute, Conn. Gen. Stat. 4-61dd(a), which provides in relevant part:

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 his consent unless the Auditors of Public Accounts or the Attorney General determine that such disclosure is unavoidable during the course of the investigation.

During the session in which the whistleblower statute was passed, the legislature added a whistleblower subsection to the Connecticut Freedom of Information Act ("FOIA"), Conn. Gen. Stat. 1-210(b)(13). Both the whistleblower statute and the new FOIA paragraph were passed in the same public act, P.A. 79-599. By simultaneously enacting the whistleblower statute and subsection 1-210(b)(13) of the Freedom of Information Act, the legislature set forth its intent to protect whistleblower identity and all records related to a whistleblower investigation.

The whistleblower subsection of the FOIA, Conn. Gen. Stat. 1-210(b)(13) provides:

Nothing in the Freedom of Information Act shall be construed to require disclosure of: ...

(13) Records of an investigation or the name of an employee providing information under the provisions of section 4-61dd.

Section 1-210(a) provides in relevant part that "all records maintained or kept on file by any public agency...shall be public records." Conn. Gen. Stat. 1-200 (5) defines "public records" as

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, photostatted, photographed or recorded by another method. (Emphasis added).

Based on these definitions, "records of investigation" exempt from disclosure under section 1-210(b)(13) would include the written whistleblower complaint submitted to the Division and all documents, notes and other materials related to the Division's investigation. Thus, consistent with the whistleblower statute, the FOIA protects from disclosure both the identity of the whistleblower and all records relating to the Division's investigation of the complaint.

The legislative history supports a consistent application of the whistleblower statute and the FOIA, which complement each other. The legislative history indicates that the legislature intended to protect the identity of whistleblowers and related information, with the possible exception of disclosure in criminal proceedings.2

B. There currently is no due process duty to disclose the requested information.

Finally, disclosure in this case at this stage of the investigation is not required under the Due Process Clause. The "Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Board of Education v. Loudermill, 470 U.S. 543, 105 S. Ct. 1487, 1493 (1985).3 It is well-established that due process rights attach when an employee is to be terminated. Id. In Loudermill, the court held that the due process clause guarantees a pretermination hearing to a public employee who can be discharged only for cause. "The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546.

In terms of other forms of discipline, the timing of due process protections varies depending upon the nature of the discipline. Under Connecticut law, state employees may be reprimanded, demoted or dismissed for just cause. Conn. Gen. Stat. 5-240, Connecticut Regulations 5-240-1a, et seq. Of course, at this point in the case at issue, there has been no determination that the whistleblower investigation will result in involuntary demotion, suspension or termination. Thus, at the investigatory stage, the accused does not have a due process right to a copy of the whistleblower complaint nor to any documents or records relating to the Division's investigation. Likewise if the alleged wrongdoer were dismissed from service, demoted, or suspended without pay, a due process right might arise requiring disclosure of certain information. If the alleged wrongdoer were arrested, certain disclosures might be needed to inform the accused of the charges against him or her and allow for a defense. However, none of those situations has occurred in this case.

Finally, your letter of April 3, 2002 sought guidance regarding how much information contained in the Division of Special Revenue's report on a completed investigation the Division conducted into the allegations set forth in the whistleblower letter should be released in response to a request for this report. As we understand it, neither the Division nor any other governmental agency has asserted any charges against any alleged wrongdoer as a result of this investigation. The report does not recommend dismissal from service, demotion, or suspension without pay of any alleged wrongdoer. For the reasons explained above, the Division is not required to release its report at this stage of the whistleblower investigation, and should not do so if this would disclose the identity of the whistleblower.

It may be permissible, however, for the Division to release its report in a redacted form if the Division is satisfied that the identity of the whistleblower is not revealed and cannot be discerned from other information included in the report. If in your judgment this is possible, it would be permissible, though not required, for the Division to release at this time such a redacted version of its report.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL


1Should the Department decide to release information in a redacted form, the actual redacting would be the Department's responsibility.

2The legislators discussed the possible situation of a criminal prosecution arising from a whistleblower investigation and the possible disclosure of information to inform the accused of the charges against him and to allow for a proper defense. During the discussion of Conn. Gen. Stat. 4-61dd in the House of Representatives on May 17, 1979, Representative Tulisano asked the following:

Mr. Balducci, in the event of a criminal charge would it be possible or would it be required or is this an attempt to shield the informant in the criminal case, so that the accused may confront the accuser?

Representative Balducci responded with,

Constitutionally, I guess you would have to.

22 Conn. H.R. Proc., pt. 24, 1979 Sess. 8462-63 (May 17, 1979), May 17, 1979, p. 8462-8463.

3"The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 (1976). The following factors are considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335.


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