Kane, 061218 CTAGO, AGO 2018-3

Docket Nº:AGO 2018-3
Case Date:June 12, 2018
Robert J. Kane, State Auditor
AGO 2018-3
No. 2018-03
Connecticut Attorney General Opinion
Office of the Attorney General State of Connecticut
June 12, 2018
         Robert J. Kane, State Auditor          John C. Geragosian, State Auditor          Auditors of Public Accounts          State Capitol, Room 116          Hartford, CT 06106-1559          Dear Messrs. Kane and Geragosian:          You have asked my opinion regarding the ability of the Auditors of Public Accounts (APA or Auditors) to review and copy a report of a private contractor to the Department of Corrections (DOC) regarding the medical care of certain DOC inmates, even though the document is privileged under the attorney-client and attorney work product privileges. In my opinion, the APA is entitled to review and copy the report, but it must do so subject to all applicable legal privileges, and thus may not further distribute or reveal the report or its contents. Release by the APA of privileged records, such as those at issue, could expose the State of Connecticut and its taxpayers to adverse legal and/or fiscal consequences.          You report that you have learned that DOC contracted with a private party to conduct a review of about twenty inmate medical cases. You report that the contract includes a provision requiring that "[t]he Contractor shall make all of its . . . Records available at all reasonable hours for audit and inspection by . . . the Connecticut Auditors of Public Accounts ... ." You further report that you have requested a copy of the report from DOC, but DOC has not provided it because DOC asserts that it is privileged under the attorney-client and work product privileges,[1] [2]and because the report is a draft and contains confidential information. You note that my office has also concluded that the document is privileged, as has the Freedom of Information Commission. Kovner v. Commissioner, Dept. of Corr., FIC #2017-0310, 12/13/2017.          The general authority of your office is set out in Conn. Gen. Stat. § 2-90. As provided in § 2-90(c), the auditors "shall audit ... the books and accounts of each officer [and] department.... Each such audit may include an examination of performance in order to determine effectiveness in achieving expressed legislative purposes." Further, § 2-90(g) provides that "[e]ach state agency . . . , the provisions of any other general statute notwithstanding, shall make all records and accounts available to [the auditors] or their agents upon demand." The provision in DOC's contract with its consultant requiring access by the Auditors appears to be in furtherance of this provision.          We also note that Conn. Gen. Stat. § 52-146r(b) provides that "[i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure." Finally, we note that § 2-90(h) provides that "[w]here 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...

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