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, (c)
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)