Frustrated auditors appeal to AG on prison officials’ refusal to turn over report

State auditors have asked the attorney general to weigh in on whether the Department of Correction must turn over a report they’ve been asking for since July.

The report by Criminal Justice Institute, Inc. is one of two outside assessments commissioned under Correction Commissioner Scott Semple, and it could shed light on the quality of health care inmates are receiving at a time when prison health care has come under close scrutiny.

Mark Pazniokas :: CtMirror.org file photo

Correction Commissioner Scott Semple

Semple has said the report contains an expert’s findings on “some specific cases that were brought to my attention about concerns about the quality of health care for a very small group of people.” Because the report may reveal the department’s legal strategy in future litigation, the report’s entire contents are protected by attorney-client privilege and are exempt from public disclosure, DOC maintains.

But the state auditors say they should still be able to see the report.

“We have attempted to resolve this issue in an informal manner. However, after eight months, we have not received the contractor’s report or a definitive answer on whether the Governor’s Office and the Department of Correction are denying our access to it,” wrote State Auditors Robert J. Kane and John C. Geragosian in a letter to Attorney General George Jepsen.

The auditors in May released findings that there were a number problems relating to oversight of medical care in prisons and the contract the department has with UConn’s Correctional Managed Health Care, which has run health care for the state prison system since 1997 — an arrangement that will end in July.

A report made public last month, which was called the primary reason for discontinuing the Department of Correction’s agreement with UConn and moving management of health care in-house, said the changes were needed to bring costs under control and avoid “untimely” health care and inadequate staffing.

The auditors are not arguing that the Criminal Justice Institute document is not protected by attorney-client privilege, but they say that privilege extends to their office.

“The idea here is the department, the agency, is saying that it is attorney-client privileged … but that protection flows to us as well because they are the state, we are the state,” Kane said.

He said he does not recall ever having to go to such lengths to obtain a document from an agency it was auditing.

“Under our statute we’re authorized all documents, all paperwork, all contracts,” Kane said.

In their letter, Kane and Geragosian said their office first sought the report in July 2017 and then again in September and January 2018.

The auditors have specifically asked the attorney general for a formal opinion to answer the following question:

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Attorney General George Jepsen

“Does the attorney/client, attorney work product or other privilege constitute a permissible basis upon which the Department of Correction may withhold the report from the Auditors of Public Accounts? If not, would providing a copy of the report to the Auditors of Public Accounts breach any such privilege?”

The auditors feel the contract clearly states they have a legal right to see it, citing this passage from the contract between DOC and the outside contractor:

“The Contractor shall make all of its and the Contractor Parties’ Records available at all reasonable hours for audit and inspection by the State, including, but not limited to, the Agency, the Connecticut Auditors of Public Accounts, Attorney General and State’s Attorney and their respective agents. Requests for any audit or inspection shall be in writing, at least ten (10) days prior to the requested date. “

In addition to investigating the issues with health care oversight and quality, the auditors said they have a duty to ensure the state got what it paid for in the $63,000 report.

“The Department of Corrections takes the issue of transparency very seriously. That’s why, over the years, the Department has provided thousands of records requested by the State Auditors.  This particular record request is unique in nature based on the legal confidentiality associated with the content,” said Karen Martucci, a spokesperson for Department of Correction. “The agency maintains its position that these records are protected by the attorney-client and attorney work product privileges, which was upheld in a decision by the Freedom of Information Commission.  Nonetheless, the Department of Correction respects the right of the state auditors to seek a formal opinion form the State’s Attorney General.”

The attorney general’s office acknowledged receiving the letter but declined to comment further.

Last month, Senate Republican Leader Len Fasano, called for the document to be made public by waiving the attorney-client privilege, and for a public hearing to examine prison health care. A spokesperson for Fasano said Friday, “Senator Fasano along with leaders of the public health committee still intend to pursue a public hearing on the inmate medical system.”

Reporter Clarice Silber contributed to this report.