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...
