Could Connecticut’s governor make the AG release eight CRRA documents about the Enron loan?

Plain-English summary

In October 2002, Connecticut’s AG told the governor that the Connecticut Resources Recovery Authority, not the AG’s office, had authority to release eight records concerning CRRA’s Enron loan. The state FOIA commission had ruled the records exempt from mandatory public disclosure because they concerned attorney-client communications or litigation strategy. The AG said those exemptions were discretionary, so CRRA could still release the records.

After reviewing the eight documents, the AG concluded that voluntary release would not require CRRA to disclose additional privileged communications connected to its recovery litigation or harm its effort to recover the Enron loan. That conclusion concerned the specific documents reviewed, not a general finding that every privileged record could safely be disclosed.

CRRA decision makers at the time

The opinion placed the disclosure choice with CRRA. An exemption meant the records need not be released under FOIA; it did not prevent CRRA from releasing them if it chose.

Journalists and other requesters at the time

The FOIA commission’s ruling did not compel release of the eight records. The AG identified CRRA as the body that could decide on voluntary disclosure.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the governor’s request require the AG to publish the CRRA records?
A: No. The AG said CRRA, not his office, held the authority to release them.

Q: Did FOIA forbid CRRA from releasing exempt records?
A: The AG said no. The cited exemptions gave CRRA discretion to withhold the eight records; it could choose to release them.

Q: Would releasing these eight records waive privilege over other Enron litigation files?
A: The AG concluded it would not require disclosure of additional attorney-client communications related to the recovery actions he described.

Background and statutory framework

The FOIA commission had ruled against public disclosure of eight documents sought by a requester and a newspaper. The governor then asked the AG to obtain and release them. The opinion separated authority over the records from whether the FOIA exemptions required secrecy and assessed the effect of releasing these particular documents on CRRA’s Enron litigation.

Citations and references

Statutes: Conn. Gen. Stat. §§1-210(b)(10) and 1-210(b)(4).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2002-formal-opinions/the-honorable-john-g-rowland-state-capitol-2002034-formal-opinion-attorney-general-of-connecticut

Original opinion text

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