Attorney General's Opinion
Attorney General, Richard Blumenthal
July 7, 1993
Hon. William E. Curry, Jr.
55 Elm Street
Hartford, Connecticut 06105
Hon. Joseph M. Suggs, Jr.
55 Elm Street
Hartford, Connecticut 06105
Dear Comptroller Curry and Treasurer Suggs:
You recently sought our advice as to whether you may discontinue the practice of providing on request lists of outstanding state checks to asset finder organizations ("AFO"). For the reasons which follow it is our opinion that the records you wish to exempt from disclosure must be disclosed.
AFO's are engaged in the business of uniting unclaimed property with its owner for a fee. The State Treasurer is the statutory custodian of abandoned or unclaimed property located in this state or whose owner's last known address is in this state. The Treasurer's authority is located in Part III of chapter 32 of the Connecticut General Statutes.
You report that both of your respective offices have been providing the State's vendor check information to AFO's upon request for several years. You state that the AFO's "then contact the vendors and inform them that they can obtain replacement checks for monies due the vendors from the State if the vendors enter into contracts with them." The contracts provide that the vendor pay a fee to the AFO in return for information about the outstanding check(s).
The vendor check information which you have been providing to AFO's is produced and provided to the State by the banking institution where the State's account is located. The information appears in a spread-sheet format consisting of columns containing the following categories of information: check number, check date, dollar amount, issue date, state agency number, expenditure batch number and payee's name consisting of its first fifteen characters. You have explained that the information in these bank-generated documents "cannot be manipulated or sorted in a manner to delete ... exempt items." Apparently, the payee name, depending on how identifiable it is from the fifteen character display, is the information which permits the AFO to locate the vendor and commence the process of making a claim to the Treasurer for unclaimed property pursuant to Conn. Gen. Stat. § 3-70a.
Your inquiry focuses on whether any of the information on the vendor check lists is exempt from disclosure under the Freedom of Information Act, Conn. Gen. Stat. §§ 1-7 et seq. In particular, you ask whether the exemptions under §§ 1-19(b)(3)(A), (b)(10), and (b)(11) are applicable to the facts of this case. We have carefully reviewed the exemptions set forth under Conn. Gen. Stat. § 1-19 and conclude that none of them provide coverage from disclosure for the records at issue here.
A list of outstanding state vendor checks which is owned, used, received or retained by a public agency is a public record subject to the Freedom of Information Act ("Act"). See Conn. Gen. Stat. §§ 1-18a(d) and 1-19(a). Disclosure is the general rule under the Act. Exemptions from the general rule are narrowly construed. Commissioner of Consumer Protection v. FOIC, 207 Conn. 698, 701, 542 A.2d 321 (1988). The burden of proving the applicability of an exemption rests upon the agency claiming it. Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991); accord Wilson v. Freedom of Information Commission, 181 Conn. 324, 329, 435 A.2d 353 (1980).
The first Act exemption which you cite is § 1-19(b)(3)(A). This exemption provides:
(3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) ...
Because the foregoing provision only applies to records of law enforcement agencies, it is not applicable to the records of the Comptroller or the Treasurer since they are not law enforcement agencies within the context of this matter.
The second exemption which you raised is § 1-19(b)(10). This provision states:
(10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship;
We find no state or federal statute which exempts the information pertaining to outstanding checks as you have described it. Likewise, the information in the lists of outstanding vendor checks does not contain any communications privileged by the attorney-client relationship. This privilege pertains to communications between a client and his attorney. Such communications are privileged when made in confidence for the purposes of seeking legal advice. State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). The subject lists were prepared by a bank for the Treasurer and Comptroller for the purpose of reconciling the State's bank accounts. The lists do not meet the definition of a confidential communication between attorney and client for the purpose of seeking legal advice.
The third and last exemption which you ask us to address is § 1-19(b)(11) which states:
(11) names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school;
This exemption pertains to records of public schools or colleges. In discussions with your staff we were apprised of the basis for your reliance on this exemption. You are concerned that the name of a payee on your outstanding check list may be a student enrolled in a public school or college. If this is the case, the name must still be disclosed because the record in which it appears is a record of your respective offices, not a record of the school or college. Therefore, we conclude that this provision does not apply to the lists of outstanding vendor checks you possess.
In addition to the exemptions discussed above, we have reviewed all of the remaining exemptions set forth in §§ 1-19(b) and 1-19(c) to determine whether any of them apply to the lists of checks. We conclude that the lists are public records containing information which is not exempt from disclosure. We therefore advise you that you should not discontinue the practice of providing lists of outstanding state vendor checks to AFO's when requested.
We trust this answers your question.
Very truly yours,
William J. Prensky
Assistant Attorney General