FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Jonathan
Starble and Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, |
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Complainants |
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against |
Docket #FIC 2002-476 | |
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Richard
Blumenthal, Attorney General, State
of Connecticut, Office of the Attorney
General; Eliot D. Prescott, Assistant
Attorney General, State of Connecticut,
Office of the Attorney General;
and State of Connecticut, Office of the Attorney General, |
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Respondents |
September 24, 2003 | |
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The above-captioned matter was heard as a contested
case on December 10, 2002 and January 7, 2003, at which time the complainants
and the respondents appeared, stipulated to certain facts and presented
testimony, exhibits and argument on the complaint.
After consideration of the entire record, the
following facts are found and conclusions of law are reached:
1.
The respondents are
public agencies within the meaning of §1-200(1),
G.S.
2.
By letter dated
August 26, 2002 to the respondent office, the complainants requested any and
all documents reviewed or relied upon in connection with Attorney General
Formal Opinion #2002-004, entitled “RE: Ownership and Management of Shares
Received in Anthem Demutualization,” rendered to the State Treasurer on or
about January 31, 2002 (hereinafter “the Attorney General’s opinion”).
3.
By letter dated
September 3, 2002, the respondent Prescott responded to the complainants’
request and informed them that the records were being reviewed to ascertain
whether any responsive non-exempt records were maintained by the respondent
office.
4.
By letter dated and
filed on October 3, 2002, the complainants appealed to this Commission
alleging that the respondents violated the Freedom of Information (“FOI”)
Act by failing to comply with their August 26, 2002 request.
The complainants’ requested the imposition of the maximum civil
penalty against the respondents.
5.
It is found that on
October 8, 2002, the complainants were given access to inspect approximately
1300 pages of records. However,
certain records were withheld from disclosure which records were identified,
by category, in a privilege log that was provided to the complainants.
6.
It is found that the
withheld records were reviewed again by respondent Prescott, who determined to
disclose additional records, which records were provided to the complainants
prior to the hearing in this matter.
7.
At the hearing on
this matter, the complainants questioned whether the exemptions claimed by the
respondents were applicable to the records that were withheld and requested
that this Commission conduct an in-camera review of them.
8.
The respondents
submitted the withheld records to the Commission for in-camera
inspection, which records have been identified as in-camera documents
#s 2002-476-001 through 2002-476-867.
9.
It is found that the
Attorney General’s opinion addressed a formal request from the Connecticut
State Treasurer for an opinion regarding whether the State of Connecticut
owned a certain number of shares disbursed by Anthem Blue Cross Blue Shield as
a result of its demutualization and whether she, as State Treasurer, had the
authority to manage and sell those shares.
10.
It is found that it
can be understood from a fair reading of the complainants’ request that they
were seeking access to inspect records used by the author or authors of the
Attorney General’s opinion to formulate the legal opinions and conclusion
found therein. Such records
reasonably would include case law, prior opinions on similar issues, federal
or state statutes, or any other such records used to address the questions
raised by the State Treasurer.
11.
It is found however
that the respondents did not simply provide the complainants’ with access to
inspect records responsive specifically to their August 26, 2002 request but
rather provided the complainants with access to inspect any non-exempt records
maintained by the respondents that pertained to the Anthem Insurance Company.
Those records pertained specifically to the Anthem Insurance Company’s
1997 merger with Blue Cross Blue Shield and to the Anthem Blue Cross Blue
Shield demutualization.
12.
It is found that the
records gathered included, among others, drafts of legal opinions and legal
strategies related to the State of Connecticut’s entitlements with respect
to Anthem Blue Cross Blue Shield, e-mails commenting on those drafts, e-mails
pertaining to scheduling meetings, draft letters, hand-written notes, and
petitions for judicial review.
13.
It is found, after
careful review of the in-camera records, that on their face, most of
the withheld records do not fall within the scope of the complainants’
August 26, 2002 request and it is not clear why the respondents failed to make
that distinction to the complainants and to this Commission.
14.
Is found that in-camera
records #2002-476-001 through 2002-476-653 and in-camera records
#2002-476-682 through 2002-476-867 do not fall within the scope of the
complainants’ request and consequently the exemptions claimed by the
respondents with respect to those records will not be addressed herein.
15.
The respondents
contend that §1-210(b)(1), and (e)(1), G.S., among other statutory
provisions, exempt in-camera records 2002-476-654 through 2002-476-681
from mandatory disclosure.
16.
Section 1-210(b)(1),
G.S., provides in relevant part that nothing in the FOI Act shall be construed
to require disclosure of “preliminary drafts or notes provided the public
agency has determined that the public interest in withholding such documents
clearly outweighs the public interest in disclosure . . . .”
17.
Section 1-210(e)(1),
G.S., provides in relevant part that notwithstanding the provisions of
subdivisions (1) and (16) of subsection (b) of this section, disclosure shall
be required of: