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Enron Mail |
FYI
----- Forwarded by Barton Clark/HOU/ECT on 09/12/2000 10:06 AM ----- "Silvers, Bruce C." <silverbc@bingham.com< 08/29/2000 08:39 AM To: "'Barton Clark'" <Barton.Clark@enron.com<, Heather Kroll <Heather.Kroll@enron.com< cc: "Pasqualini, Martin J." <PASQUAMJ@bingham.com<, "Politan, Nicholas H." <PolitaNH@bingham.com< Subject: RE: Presentation Given the time constraint, I thought I'd give you a brief summary of the law here in Connecticut and some thoughts on how to proceed. The Connecticut courts and the Freedom of Information Commission (the "FOIC"), the agency charged with the enforcement of FOIA, have repeatedly held that CRRA, CDA and DECD are public agencies within the purview of FOIA (I have not had time to consider whether the same is true for DEP, CPUC and the other attendees, but suspect that it is so with respect to certain of them). FOIA provides, among other things, that all documents obtained or kept by a public agency are public records available to the public, unless otherwise exempted from disclosure by special statute or by the exemptions delineated by FOIA. While there is no special statute with regard to CRRA, a special statute, Conn. Gen. Stat. Section 32-11a(k), exempts certain materials and information submitted to DECD and to CDA from public disclosure. Section 32-11a(k) states that all information contained in any application for financial assistance submitted to DECD or CDA, and all information obtained by the DECD or CDA with respect to any person or project is exempt from disclosure under the FOIA. The statute specifies that this exemption includes all financial, credit and proprietary information. I have not had time to consider whether there are special statutory exemptions provided for similar information submitted to the other attendees. Consequently, FOIA governs the confidentiality of all information submitted to CRRA and, perhaps, certain of the other attendees and the confidentiality of information submitted to DECD and CDA falling outside Section 32-11a(k)'s exemption. As may be pertinent in these circumstances, FOIA exempts from disclosure: (1) preliminary drafts under certain circumstances, (2) trade secrets and commercial or financial information given in confidence, and that is not required by statute to be disclosed to an agency, (3) real estate appraisals, engineering or feasiblity estimates or evaluations for an agency relative to the acquisition of property or to prospective public supply and construction contracts, but only until such time as the property is acquired or the transaction abandoned, (4) tax returns, reports and statements exempted by federal law or state statutes, and (5) communications privileged by the attorney-client relationship. While the Connecticut courts and FOIC have held that the confidentiality of information submitted to agencies subject to FOIA is determined by applicable law rather that the representations or agreements of the parties, they have suggested that measures designed to preserve confidentiality may be considered in making that determination. While your notice cites a May 19, 2000 Agreement of Confidentiality previously executed by CRRA and Enron (which I have not seen), obviously that will not be binding upon any attendees not a party to it and, while it would be better to have the other attendees execute a written agreement regarding confidentiality, I understand that that may not be practical given the timing and the number of parties involved. Accordingly, I recommend that the following other steps be employed with respect to confidential information submitted to the attendees: 1. All documents and information submitted to the attendees should be marked "Preliminary Draft". 2. In the fourth paragraph of your notice, change clause (1) to read "the Subject Information is being provided to it in confidence, contains trade secrets and/or confidential commercial, financial and proprietary information and other information exempt from disclosure under certain laws of the State of Connecticut, and it will maintain the confidentiality of the Subject Information". 3. You should take steps, internally, to ensure the confidentiality of the information you submit to the agencies. Appropriate measures would include: (a) limiting access to confidential information to a "need to know" basis, (b) entering into confidentiality agreements with others involved in the project with respect to their studies, analyses, etc., for the project, © advising your personnel (secretarial, etc.), in writing, that the information is confidential and of the need to maintain such information in confidence, and (d) maintaining confidential information in locked or otherwise private files. 5. A request should be made by you to the agencies that confidential information be discussed by the agencies in executive session. If we take these measures with regard to information supplied to the agencies, we will enhance the likelihood of maintaining the confidentiality of the information in response to a public request for disclosure of the information pursuant to the FOIA. Should you wish to discuss this matter in more detail, please do not hesitate to call me at (860) 240-2943. -----Original Message----- From: Barton Clark [mailto:Barton.Clark@enron.com] Sent: Monday, August 28, 2000 4:07 PM To: Heather Kroll Cc: silverbc@bingham.com Subject: Presentation I suggest adding the attached in as the first page of text in the presentation materials and call the attendee's attention to it at the commencement of the presentation. If there is a problem with its length, I would suggest deleting the laundry list of attendees in the first paragraph and the third paragraph only. Also, I did not have time to check with Conn counsel on the procedures for public disclosure in Conn alluded to generally in the fourth paragraph, but by copy hereof am requesting they review the language of the Notice and give us any comments. When do the materials have to be distributed? (See attached file: Notice to Recipients of Presentation Materials.doc)
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