Attorney General: The Honorable John G. Rowland, State Capitol, 2002-034 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 17, 2002

The Honorable John G. Rowland
Governor
State Capitol
Hartford, CT 06103-1800

Dear Governor Rowland:

On October 9, 2002, the Freedom of Information Commission (Commission) ruled that the Connecticut Resources Recovery Authority (CRRA) was not required to disclose to the public eight documents in CRRA's possession which were the subject of an April 17, 2002, and an April 23, 2002 Freedom of Information Complaint filed by Paul A. Green and the Journal Inquirer. According to the Commission, the eight documents in question either constitute attorney-client communications or relate to CRRA's possible litigation strategy to recover the $220 million loaned to Enron and are, therefore, exempt from public disclosure pursuant to Conn. Gen. Stat. 1-210(b)(10) and 1-210(b)(4). By letter dated October 11, 2002, you have asked me to obtain from CRRA the eight documents that have not yet been disclosed and release them to the public. A response to your request requires an analysis of the Freedom of Information Act and whether release of the documents would constitute a broad waiver of CRRA's attorney-client privilege, thereby jeopardizing CRRA's efforts to recover the money it lost to Enron. It is our opinion that the authority to release these documents rests with the CRRA and not with this office. Additionally, release of the documents by the CRRA is discretionary under the Freedom of Information Act. We also conclude that release of the documents by the CRRA would not lead to a judicial order that CRRA disclose additional privileged documents related to lawsuits that CRRA has and will file and would not adversely affect CRRA's ability to recover the $220 million.

My office has reviewed the eight documents in question. These documents only disclose or discuss information that has already been made public by the CRRA or its former officers or directors. They appear to have been prepared by former CRRA employees; none were prepared by CRRA's legal advisors, former or current. All were prepared prior to Public Act 02-46, which specifically designated this office as the exclusive authority to represent CRRA in pursuing recovery of the $220 million. They were not directed to the current CRRA Board of Directors, or to the current Chairman of the Board of Directors.

Regardless of whether the documents fall within the exemptions for disclosure contained in the Freedom of Information Act, including the attorney-client communication exemption contained in Conn. Gen. Stat. 1-210(b)(10) and the exemption for strategy and negotiations relating to pending claims and litigation set forth in Conn. Gen. Stat. 1-210(b)(4), such exemptions are discretionary and CRRA may release the documents if, for example, CRRA determines that such release would be in the public interest. Based on our review of the documents and the above-mentioned considerations, we conclude that release of the documents is discretionary with the CRRA and will not adversely affect CRRA's pending or proposed litigation to recover the $220 million that CRRA loaned to Enron. Additionally, in our opinion, release of these documents will not require CRRA to release attorney-client communications related to the legal actions that we have initiated or that CRRA is a party to, or any further action that we are currently contemplating.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL

c: Michael Pace, Chairman
   Connecticut Resources Recovery Authority


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