Attorney General: The Honorable Kevin B. Sullivan, State Capitol, 2002-027 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 26, 2002

The Honorable Kevin B. Sullivan
President Pro Tempore
State Senate
State Capitol
Hartford, CT 06106-1591

Dear Senator Sullivan:

You have requested an opinion concerning the validity of certain claims of testimonial privilege asserted by officials of the State Department of Environmental Protection (DEP) subpoenaed to testify at a hearing of the Joint Committee on Labor and Public Employees ("Joint Committee").

You state that on May 20, 2002, the Joint Committee held a hearing for the purpose of seeking information and facts related to certain practices that were the subject of a whistleblower report. Pursuant to Conn. Gen. Stat. § 2-46(a), the Chairpersons of the Joint Committee issued subpoenas to a number of current and former officials of DEP requiring them to attend the hearing, provide documents and testify before the Joint Committee. During the hearing, a number of the DEP witnesses refused to answer various questions posed to them by the Joint Committee members, claiming that the information elicited was protected by various testimonial privileges, including the Fifth Amendment constitutional right not to incriminate themselves, the Freedom of Information Act (FOIA), and the existence of ongoing administrative "adjudications." We understand that the General Assembly has referred this matter to the Hartford Judicial District State's Attorney for investigation pursuant to Conn. Gen. Stat. § 2-48.

In particular, you seek an opinion of this Office as to whether claims of privilege asserted by these DEP witnesses, specifically, claims that their testimony was privileged under the Freedom of Information Act (FOIA) and as a result of pending administrative adjudications, were valid. We conclude that FOIA, a statute limited to the production of documents and open meetings, does not authorize any testimonial privileges and privilege claims related to the administrative decision-making process, if claimed here, require further inquiry.

There is no authority under state law for a witness to assert FOIA as the basis of a testimonial privilege. FOIA was enacted as a vehicle to provide the public with access to the workings of state government. See Chief of Police v. FOIC, 252 Conn. 377 (2000). There is nothing in FOIA that could be construed to provide a basis for the assertion of a testimonial privilege. FOIA is limited to public records and meetings and does not address, prohibit or protect oral communications or statements of public officials subpoenaed to testify at a hearing of the Legislature or any other forum. See generally , Conn. Gen. Stat. §1-200 et.seq.; McCormick on Evidence, (5th Ed.) § 108. Indeed, efforts to employ FOIA as a means to limit discovery in civil proceedings have been specifically rejected by the state Supreme Court. Chief of Police, 252 Conn. 377. Thus, FOIA does not constitute a basis for the assertion of a testimonial privilege, even if a document containing the same information would be exempt from disclosure under FOIA.

As to the witnesses' claims of privilege related to ongoing administrative proceedings, the exact nature of and legal basis for the administrative testimonial privileges claimed by the DEP witnesses is unclear. At the hearing, counsel for the DEP witnesses explained their claim in the following general way: "The fact that there are pending adjudications which need to be resolved and which the disclosure of any information might result in a prejudging or predisposition with respect to these matters." Transcript of May 20, 2002 hearing (TR), p. 90. Deputy Commissioner Leff claimed he was the "decision-maker in a legal process that is still pending." TR. 134.1

We are not aware of the existence of any such broad testimonial privileges for administrative decision-makers and officials. Connecticut courts have recognized a testimonial privilege, which precludes testimony attributable to the "mental process" of some agency decision-makers. Welch v. Zoning Board of Appeals, 158 Conn. 208 (1969); Adriani v. Commission on Human Rights and Opportunities, 228 Conn. 545, 548 (1994); United States v. Morgan , 313 U.S. 409 (1941); Zinker v. Doty, 637 F.Supp. 138, 140 (D.Conn. 1986); see also, United States v. Hooker Chemicals & Plastics, 123 F.R.D. 3 (W.D.N.Y., 1988). The "mental process" privilege has been applied to administrative decision-making to protect the mental or thought processes of administrative decision-makers in rendering certain decisions. Morgan, 313 U.S. 409. Like judges, administrative decision-makers are ordinarily not required to testify concerning their mental or thought processes in reaching a decision where the proceeding "has a quality resembling that of a judicial proceeding." Morgan, 313 U.S. 409; Adriani, 228 Conn. 545; Welch, 158 Conn. 208. The privilege does not apply to all decisions of administrative decision-makers, but only to "testimony of a governmental official who acts in a judicial or quasi-judicial or administrative decision making capacity and has arrived at this decision within the scope of his or her power." U.S. v. Hooker Chemicals & Plastics, 123 F.R.D. 3, quoting M. Larkin, Federal Testimonial Privilege (1987) at 5-2.

This privilege however, is not absolute and may not be asserted in a blanket manner to decline to answer any and all questions in a court or legislative proceeding. Testimony of agency decision-makers may be subject to inquiry where there is a prima facie claim that the decision was "tainted by impropriety," or the motives of the decision-maker are at issue. Id., 7, 21; KFC National Management Corporation v. NLRB, 497 F.2d 298, 305 (2nd Cir. 1974), cert. denied, 423 U.S. 108; Feller v. Board of Education 583 F.Supp. 1526, 1528 (D.Conn. 1984). Additionally, like judges, agency decision-makers may be required to testify as to facts and their observations. State v. Williams, 30 Conn. App. 654 (1993); see also, Martone v. Lensik, 215 Conn. 49, 54 (1990) (There is a distinction between “an inquiry into a hearing officer's subjective decision-making process and an inquiry into the objective question of what she had read” to reach that decision.)

A related and overlapping privilege associated with agency decision-making, the "deliberative process" privilege, has been recognized by state and federal courts to protect "'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions are formulated.'" N.L.R.B. v. Sears Roebuck and Co ., 421 U.S. 149, 152-3 (1975), quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, D.C. Cir. 1966).2 See also, McCormick on Evidence, (5th Ed.) § 108; Hopkins v. United States Department of Housing and Urban Development, 929 F.2d 81, 84 (2nd Cir. 1991); Hooker Chemicals & Plastics, 123 F.R.D. 3; Killington, Ltd. v. Lash, 572 A.2d 1368, 1372 (Vt. 1990). Information is considered "'pre-decisional' if "'it is prepared in order to assist an agency decision-maker in arriving at his decision.'" United States Department of Housing and Urban Development, 929 F.2d 81, 84 (2d Cir. 1991), quoting Renegotiation Board v. Grumman Aircraft Eng'g Corp., 421 U.S. 168 (1975). "Deliberative" means that the information is "'actually . . . related to the process by which policies are formulated.'" Id. quoting Jordan v. United States Department of Justice, 192 U.S.App. D.C. 144, (D.C. Cir. 1978); Hooker Chemicals and Plastics, 123 F.R.D. 3, 15. The purpose of the deliberative process privilege is to promote the quality of agency decisions by permitting unencumbered discussion and candor among government personnel in developing policy. N.L.R.B, 421 U.S. at 149; McCormick on Evidence, (5th Ed., §108).

Like the mental process privilege, this privilege does not provide an absolute bar to the admission of all testimony by an agency decision-maker and does not apply to: (1) opinions or conclusions of those not part of that process; (2) underlying facts or observations, even if relied on in the decision making process; (3) statements that summarize facts; or (4) documents that describe an agency's policy after it has been adopted. Hooker Chemicals and Plastics, 123 F.R.D. at 15; N.L.R.B., 421 U.S. at 153. In addition, the deliberative process privilege may be overridden if it is determined that the interest in disclosure outweighs the government's interest in maintaining the confidentiality of the document. Texaco v. Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); Zinker v. Doty, 637 F.Supp. 138; Thompson v. Lynbrook Police Department 172 F.R.D. 23 (E.D.N.Y. 1997). Some of the factors to be considered in the balance include the relevance of the evidence sought to be protected, the possibility of future timidity and other effects on government employees whose secrets had been disclosed, society's interest in fact finding, and the public interest in scrutinizing the government's decision making process. Thompson, 172 F.R.D. at 26; Zinker, 637 F.Supp. 138.3

In addition, the deliberative process privilege is "routinely denied" where the document would shed light on a government impropriety. Texaco, 60 F.3d at 885. Also, the disclosure may be required where the government's intent or deliberations are legitimate issues in the matter. In re Subpoena Duces Tecum, 145 F3d 1422, 1424 (D.C. Cir. 1998) (intent at issue in discrimination case under Title VII); Burka v. New York City Transit Auth., 110 F.R.D. 660, 667 (S.D.N.Y. 1986) (disclosure required where the process requiring drug testing is at issue).

Thus, assuming the DEP witnesses intended to claim these particular testimonial privileges, whether they could do so successfully would depend on whether such testimony pertains to the mental or deliberative process of the decision-maker or agency. If so it would also be necessary to determine whether the Joint Committee members' questions sought facts, observations, opinions, or post-decisional information explaining a final agency action, which under the case law cited above, would not fall within the privilege. Further factual inquiry by the Joint Committee may be required to determine the nature and bases of the claims of privilege.

The Joint Committee's investigation of the manner in which DEP treated two whistleblowers, who were state employees, and consideration of possible legislative reform of whistleblower laws in general, were clearly within the Joint Committee's jurisdiction and authority to investigate and oversee the functioning of state agencies. Conn. Gen. Stat. § 2-46; Manson's Manual of Legislative Procedure, Part X, 795. Thus, even if these testimonial privileges were properly asserted and applied, the public's interest in scrutinizing DEP's decision making process may be of sufficient necessity to override the privilege, as discussed above. See Thompson, 172 F.R.D. at 26; Zinker, 637 F.Supp. 138.

I trust that this letter responds to your inquiry.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL



Susan Q. Cobb
Assistant Attorney General

RB/sqc


1 In view of the general nature of the privileges asserted, we cannot render an opinion specifically addressing these privileges. As this matter has been referred to the Hartford State's Attorney, pursuant to Conn. Gen. Stat. § 2-48, his review may result in a clarification of the alleged privileges asserted by the witnesses. Thus, this response is intended to provide an overview of the law governing the privileges asserted here and is not intended to address each and every question posed and privilege asserted.

2It does not appear that the Connecticut appellate courts have had the opportunity to opine on the applicability of the "deliberative process" privilege.

3 Other factors to be considered in the balance include the availability of other evidence, the issues involved in the litigation, and the government's role in the litigation. Thompson, 172 F.R.D. at 26.


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