The above-captioned matter was heard as a contested case on October 14, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

1. The respondents are public agencies within the meaning of §1-200(1), G.S.

2. It is found that, by letter dated prior to March 31, 2011, the complainant made a request to the respondents for a copy of a whistleblower file involving his wife Laura Bryant.  It is further found that this request was the last correspondence in a long line of requests in which the complainant sought a copy of this same file from the respondents.  It is further found that the complainant first began requesting a copy of this file from the respondents some time in 2007. 

3. It is found that, by letter dated March 31, 2011, the respondents acknowledged the complainant’s request for records, and informed the complainant that “records of a whistleblower investigation are exempt from disclosure pursuant to Conn. Gen. Stat. §1-210(b)(13).”  On this ground, it is found that the respondents denied the complainant’s request. 

4. By undated letter filed April 13, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for the records.  

5. Section 1-200(5), G.S., provides:

     “Public records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

6. Section 1-210(a), G.S., provides in relevant part that:

     Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . (3) receive a copy of such records in accordance with 1-212.

7. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”

8. It is found that the respondents maintain the records described in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

9. Section 1-210(b)(13), G.S., exempts from mandatory disclosure “[r]ecords of an investigation or the name of an employee providing information under the provisions of section 4-61dd.”

10. Section 4-61dd, G.S., provides in relevant part:

     (a) Any person having knowledge of any matter involving [corruption or waste in state government] may transmit all facts. . . to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as the Attorney General deems proper regarding. . . .  Prior to conducting an investigation of any information that may be reasonably derived from such report, the Attorney General shall consult with the Auditors of Public Accounts concerning the relationship of such additional information to the report that has been issued pursuant to this subsection. Any such subsequent investigation deemed appropriate by the Attorney General shall only be conducted with the concurrence and assistance of the Auditors of Public Accounts. At the request of the Attorney General or on their own initiative, the auditors shall assist in the investigation. The Attorney General shall have [subpoena power] for the purpose of an investigation. . . . Upon the conclusion of the investigation, the Attorney General shall where necessary, report any findings to the Governor, or in matters involving criminal activity, to the Chief State's Attorney. In addition to the exempt records provision of section 1-210, the Auditors of Public Accounts and the Attorney General shall not, after receipt of any information from a person under the provisions of this section or sections 17b-301c to 17b-301g, inclusive, disclose the identity of such person without such person's consent unless the Auditors of Public Accounts or the Attorney General determines that such disclosure is unavoidable, and may withhold records of such investigation, during the pendency of the investigation.  (Emphasis supplied). 

11. The complainant alleges that the Attorney General’s Office closed and then opened this particular whistleblower file for the sole purpose of withholding the records at issue from the complainant.  The complainant also contends that, because Ms. Bryant’s original communication with the respondents and/or the Auditors of Public Accounts was not a whistleblower complaint, the records in the respondents’ possession should not be categorized as records of a whistleblower investigation. 

12. With regard to the complainant’s first contention, if the records at issue in this case are records concerning a whistleblower investigation, it does not matter whether the respondents’ actual whistleblower file or investigation is “opened” or “closed.”  See State of Connecticut, Office of the Attorney General v. FOIC, HHBCV094021768S, 2011 Conn. Super. LEXIS 129, at *15-16 (Conn. Super. Ct. Jan. 20, 2011) (“the court finds that by its plain language and its relationship to §1-210(b)(13), §4-61dd(a) does not require the Attorney General to release records of a whistleblower investigation pursuant to an FOIA request upon the conclusion of an investigation. . . .”)  Accordingly, under the law, records of a whistleblower investigation are, at all times, exempt from mandatory disclosure.

13. With regard to the complainant’s second contention referred to in paragraph 11, above, it is found that Ms. Bryant was discharged from her job with Apple Healthcare, a large state contractor, in April 2004.  It is further found that, in September 2006, Ms. Bryant reported to the Attorney General’s Office that she believed her termination was retaliatory because she had advised her employer that it could not refuse to take a patient back into the facility after such patient had been sent from the facility to a hospital for services.  It is found that this practice is commonly referred to as “dumping” patients.  It is found that both the Auditors of Public Accounts and the Attorney General’s Office investigated Ms. Bryant’s allegations.  It is found that one of the conclusions reached by the Attorney General’s Office was that Ms. Bryant’s whistleblower complaint of retaliatory discharge could not be substantiated because the discharge in 2004 could not have occurred as retaliation for bringing a complaint to the Auditors of Public Accounts and the Attorney General’s Office about the employer in 2006.   See Conn. Gen. Stat. §4-61dd(b)(1) (“no officer or employee of a large state contractor. . . shall take or threaten to take any personnel action against. . . any employee of a large state contractor in retaliation for such employee’s. . . disclosure of information to (A) an employee of the Auditors of Public Accounts or the Attorney General under the provisions of subsection (a) of this section. . . . “).  Nonetheless, it is found that simply because the Attorney General’s Office determined that Ms. Bryant’s claim of whistleblower retaliatory discharge could not be substantiated, does not mean that the Attorney General’s investigation into the allegations raised with regard to the state contractor’s practice was not a whistleblower investigation. 

14. It is concluded that the records at issue in this case are “records of a whistleblower investigation,” pursuant to §1-210(b)(13), G.S.  It is further concluded that the records are exempt from mandatory disclosure by virtue of §4-61dd, G.S. 

15. Based on the forgoing facts and conclusions, it is concluded that the respondents did not violate the FOI Act by denying the complainant a copy of the records at issue in this case.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 1.  The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 2012.

__________________________
Cynthia A. Cannata
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Bart Bryant
759 Durham Road
Madison, CT  06443

Attorney General, State of Connecticut, Office of the Attorney General
and; State of Connecticut, Office of the Attorney General
c/o Kirsten S.P. Rigney, Esq.
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission