FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Noah H. Starkey,

Complainant

against Docket #FIC 86-61

Town Manager of Coventry and the Town of Coventry,

Respondents April 9, 1986

The above-captioned matter was heard as a contested case on March 17, 1986, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. On or about September 13, 1984 the respondent town contracted with the State of Connecticut, Department of Environmental Protection ("DEP") to construct a pollution treatment system. The respondent town thereafter contracted with the firm of Fuss & O'Neill, consulting engineers, for a hydrogeologic study of the proposed site in Coventry. Pursuant to such contract, Fuss & O'Neill conducted certain hydrogeologic tests on property owned by Anna Z. Hawkes.

3. On or about June 10, 1986 Fuss & O'Neill forwarded to the Water Compliance Unit of the DEP a 200-page document entitled: "Hydrogeologic Study of Land Application Site, Coventry, Connecticut, March, 1985. Revised June 3, 1985." The DEP provided the complainant with a copy of such report prior to hearing.

4. On October 15, 1985, the respondent town, acting by and through its Water Pollution Control Authority pursuant to 7-248, G.S., voted to acquire Ms. Hawkes's property in Coventry. On or about October 18, 1985 the respondent town issued a Statement of Compensation and the property was thereafter acquired by the town through condemnation proceedings. Ms. Hawkes subsequently filed an appeal in Superior Court on the issue of compensation, which appeal was pending on the date of hearing.

Docket #FIC 86-61 Page Two

5. On January 14, 1986 the complainant made a request of the respondent town manager for copies of all reports, test results and analyses prepared by Fuss & O'Neill in connection with Ms. Hawkes's property.

6. By letter dated January 15, 1986 the respondent town manager informed the complainant that he had no objection to the release of the information, if such information existed. The respondent town manager stated that he had no knowledge of the existence of such information.

7. By letter dated January 23, 1986 the town attorney, Abbot B. Schwebel, informed the complainant that "[n]o tests were done by Fuss & O'Neill to determine quantities of gravel on site, since it is our opinion gravel is not a relevant factor in the value of the property since no gravel permit was ever taken out on the land." Mr. Schwebel also asked that further questions be posed in the form of a motion on interrogatories "and we can argue it in front of Judge Kelly, if need be."

8. By letter dated January 31, 1986 the complainant made a request of Fuss & O'Neill for the reports and records referred to at paragraph 5, above.

9. By letter dated February 10, 1986 Fuss & O'Neill informed the complainant that his January 31, 1986 letter had been forwarded to the town attorney. The complainant received no further response from the town attorney.

10. By letter of complaint filed with the Commission on February 27, 1986 the complainant appealed the failure of the respondents to provide the requested records.

11. At hearing the respondents moved to dismiss the complaint on the ground that the appeal was not filed within 30 days of an alleged violation of the Freedom of Information Act. Finding that the appeal was filed within 30 days of the respondents' failure to respond to the inquiry referred to them by Fuss & O'Neill, the motion to dismiss was denied.

12. The respondents claim that if the requested records exist they are exempted from disclosure by 1-19(b)(4) and 1-19(b)(7), G.S.

13. It is found that the records sought are real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisitition of property or to prospective public supply and construction contracts, within the meaning of 1-19(b)(7), G.S.

Docket #FIC 86-61 Page Three

14. It is found that although title to Ms. Hawkes's property passed prior to the complainant's request, such property was, at the time of the complainant's request and on the date of hearing, the subject of a judicial proceeding to review the fairness of the compensation offered to Ms. Hawkes by the respondent town.

15. It is concluded that, as of the date of hearing, not all of the proceedings or transactions regarding the subject property had been terminated or abandoned.

16. It is concluded that the records in question are exempted from disclosure by 1-19(b)(7), G.S.

17. It is not necessary to address other claims of exemption raised by the respondents.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The complaint is dismissed.

Approved by order of the Freedom of Information Commission at its special meeting of April 9, 1986.

ÿ

Karen J. Haggett

Clerk of the Commission