Attorney General's Opinion
Attorney General, Richard Blumenthal
January 9, 2001
Honorable Gene Gavin
Department of Revenue Services
25 Sigourney Street
Hartford, CT 06106
Dear Commissioner Gavin:
By letter of June 14, 2000, the Department of Revenue Services ("DRS") requested an opinion from my office as to whether a telephone recording system ("the system"), which the Collections and Enforcement Division ("C&E") of the DRS intends to implement, is in compliance with Conn. Gen. Stat. § 52-570d(a). Your agency also asked several other questions relating to implementation of the system. Please be advised that this office has particular concern with the failure of the proposed telephone system to have an automated notification audible to both parties on outgoing calls. This system may be legally implemented only if the Department can insure that all parties to every telephone call will receive notification that the call will be recorded whether the call is incoming or outgoing.
Conn. Gen. § 52-570d(a) provides as follows:
This statue was discussed by the court in Washington, et al. v. Meachum, 238 Conn. 692, 680 A.2d 262, (1996). The court stated that:
Id. at 272.
The purpose of this statute, therefore, is to strengthen the privacy protections afforded to Connecticut citizens by prohibiting recording of telephone conversations unless done with the knowledge of all parties to the conversation. The statute provides three alternative ways to make sure that the non-recording party is aware that the conversation is being recorded. As described in your letter, C&E intends to make callers aware that the conversation is being recorded by including "a recording to be played for all incoming telephone calls advising callers that their call may be recorded" and by orally advising "recipients of all outgoing calls that their calls may be recorded." Our concern is that the proposed system does not provide automated notification to the recipients of outgoing calls, but instead relies upon Department employees to give this notificaiton at the beginning of outgoing calls. Department employees may forget to give this notice.
If such automated notification is given at the beginning of all outgoing calls and such notification is recorded at the beginning of the communications, these methods of notification would comply with the second alternative method of notification under the statute and would not conflict with the requirements of Conn. Gen. Stat. § 52-570d. We would like to point out, however, that since the recording system will be taping conversations of DRS employees, the DRS must also comply with Conn. Gen. Stat. § 31-48d as well as § 52-570d. This section requires that written notice be given to each employee whose conversations will be monitored and the posting of notices regarding the monitoring.
The second question posed by the DRS asked whether the recordings would be "deemed public records for FOI purposes?" Section 1-200(5) of the General Statutes states that:
Id. (emphasis added).
Therefore, the recordings would be "deemed public records for FOI purposes." However, it is important to emphasize that if the subject matter of the conversations with members of the public falls within the scope of any of the specific exemptions to the application of the Freedom of Information Act set forth in Conn. Gen. Stat. §1-210, even though they would be public records, they may be withheld. For instance, Conn. Gen. Stat. §1-210(b)(10) exempts from disclosure tax returns and "statements exempted by federal law and state statutes." Therefore, all of the limitations upon disclosure of confidential tax information contained in Conn. Gen. Stat. §12-15 of the general statutes would apply to these recordings.
The next question asked is, "Would recordings of calls between DRS employees, or between DRS employees and other state employees, be subject to FOI or discovery requests?"
The answer to this question is yes, unless the subject matter of these recordings falls within the ambit of one of the specific exemptions to the application of the Freedom of Information Act set forth in Conn. Gen. Stat. §1-210 or within the ambit of one of the privileges of non-disclosure recognized under Connecticut law.
The DRS's next question is "Would recordings of calls between C&E and employees of the Attorney General’s Office or the Department’s Legal Division be protected by the attorney client privilege and, if so, would each call have to be prefaced by the statement ‘this call is protected by the attorney client privilege'?"
The answer to this question would depend upon whether the conversation falls within the scope of the privilege and not upon whether or not it is prefaced by the statement included in your question. Not all conversations with attorneys fall within the scope of the privilege.
As the Court stated in Pagano, et al. v. Ippoliti, et al., 245 Conn. 640, 716 A.2d 848 (1988):
Id.at 245 Conn. 649 (emphasis added).
The next question is whether, "Based on the attached copy of a memo from Eunice DiBella, Public Records Administrator, to Kevin Forsa of DRS, does your office concur that a 30-day retention period for the recordings is legally valid?"
Under Conn. Gen. Stat. §§11-8 and 11-8a, all state agencies are required to submit to the Public Records Administrator proposed retention schedules of public records, for her approval, based upon the administrative need of retaining such records. Eunice DiBella, the Public Records Administrator, by her April 6 memo to Kevin Forsa has approved the 30-day retention schedule for the recordings based upon their use for quality assurance. We concur, therefore, that this retention period is legally valid, if as Ms. DiBella states in her memo, "... your department has determined they do not belong with the taxpayer’s file."
The last two questions are as follows:
Conn. Gen. Stat. §52-570d(a) makes it illegal for any person to record a telephone conversation unless the requirements of that statute are observed. Therefore, if a "DRS employee forgets to advise someone on an outgoing call that the call may be recorded" that would constitute a violation of that person’s privacy rights under the statute.
Conn. Gen. Stat. §52-570d(c) states that:
Therefore, the person whose conversation was illegally recorded would have the right to bring an action to recover damages for such violation. However, depending on the facts of a particular case, the employee responsible for the violation may not be personally liable for such violation, but the State may be liable for such actions.
Conn. Gen. Stat. §4-165 provides as follows:
We trust that this answers all of the questions raised by your agency regarding the proposed telephone recording system, and that you will take the appropriate actions necessary to ensure that everyone’s privacy rights are fully protected.
Very truly yours,
Robert L. Klein
Assistant Attorney General
1In this context it should be noted that the legislature has recently codified the attorney client privilege as it relates to confidential communications between a government attorney and public officials and employees of public agencies in Public Act No. 99-179 §1. Section 1(2) of that act defines confidential communications to mean: