FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Anna V. Crawford and the Town f Suffield,

Complainants

against Docket #FIC 88-209

Commissioner, State of Connecticut Department of Public Works,

Respondent September 28, 1988

The above-captioned matter was heard as a contested case on July 21, 1988, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

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

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

2. On or about March 14, 1988 the respondent, acting on behalf of the State of Connecticut Department of Public Works ("DPW"), entered into a contract with Frederic R. Harris, Inc., a consulting engineering firm, for the preparation of an Environmental Impact Evaluation on a proposal to locate a prison in Suffield.

3. On or about April 25, 1988 the respondent, acting on behalf of the DPW, entered into a contract with Fletcher- Thompson, Inc., an architectural firm, to design the prison project.

4. By letter dated May 9, 1988 the complainants made a request of the respondent for copies of any and all documents obtained or produced by Frederic R. Harris, Inc. in preparing the prison EIE, as they became available to or were prepared by Harris.

5. By letter dated May 9, 1988 the complainants made a request of the respondent for copies of any and all documents generated by Fletcher-Thompson, Inc. with respect to the prison project, as they became available to the DPW.

Docket #FIC 88-209 Page Two

6. By letter to the complainants dated May 19, 1988 the respondent stated that the files of the DPW, the Department of Correction and the Office of Policy and Management were open to the complainants for their inspection, but that none of such three agencies had received any of the documents or reports requested. The respondent offered to keep the complainants updated on the project through meetings with deputy commissioner Richard Piotrowski.

7. By letter dated May 25, 1988 the complainants reiterated their requests to the respondent.

8. By letter of complaint dated June 1, 1988 and filed with the Commission on June 2, 1988 the complainants appealed the respondent's failure to provide the requested records.

9. By letter to the complainants dated June 2, 1988 the respondent stated that the documents the contractors were required by their contracts to submit would be accessible to the complainants upon receipt by the State, but that the records requested were not otherwise public records.

10. By supplemental letter of complaint dated and filed with the Commission on June 7, 1988, the complainants stated their position that records generated pursuant to the contracts referred to at paragraphs 2 and 3, above, were public records, even if not maintained in the files of any state agency.

11. It is found that the contract between the DPW and Frederic R. Harris, Inc. calls for the preparation of a preliminary draft report, a draft report, and a final report, to be submitted to the DPW within agreed-upon time frames. The contract also provides that each report submitted must document the data collected in connection with certain specified "tasks," the first task being "data collection."

12. It is found that the contract between the DPW and Fletcher-Thompson, Inc. calls for the preparation of drawings and specifications pertaining to a preliminary design phase and a final design phase, to be submitted to the DPW within agreed-upon time frames.

13. As of the date of hearing, the DPW had not received or reviewed any reports or records from either Frederic R. Harris, Inc. or Fletcher-Thompson, Inc.

Docket #FIC 88-209 Page Three

14. It is found that the requested records, generated or collected by Frederic R. Harris, Inc. and Fletcher-Thompson, Inc. pursuant to contractual agreements with the DPW, were not, as of the date of hearing, prepared, received or retained by the respondent or the DPW within the meaning of 1-18a(d), G.S.

15. It is further found that, under the circumstances, the requested records were not, as of the date of hearing, owned or used by the respondent or the DPW.

16. It is concluded that as of the date of the complainants' request, and up to the date of hearing, the requested records were not public records within the meaning of 1-18a(d), G.S.

17. It is further concluded that the respondent's failure to provide access to inspect or copy such records did not violate 1-15 or 1-19(a), G.S.

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

1. The complaint is hereby dismissed.

2. The Commission notes that the above decision is limited strictly to the facts herein and should under no circumstances be interpreted as an indication that public records are only those in the custody of a public agency.

Approved by order of the Freedom of Information Commission at its special meeting of September 28, 1988.

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Catherine H. Lynch

Acting Clerk of the Commission