FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Elissa Bass and The Day,
Complainants
against Docket #FIC 90-223
New London City Manager,
Respondent October 24, 1990
The above-captioned matter was heard as a contested case on September 6, 1990, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. On September 19, 1990, the case was reopened for the additional testimony of subpoenaed witnesses. The case was consolidated for hearing with contested case docket numbers FIC 90-250 and FIC 90-270.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed with this Commission on June 11, 1990, the complainants alleged that the respondent denied their June 4, 1990 request for access to all exhibits submitted to the arbitration panel during a hearing the American Arbitration Association ("AAA") conducted between the city and Congress Group Ventures, Inc. ("CGV") as well as to any and all parts of the transcript of testimony given during the four days of the hearing held in April and May.
3. It is found that on June 8, 1990, the respondent denied access to both the exhibits and the transcripts on the advice of counsel.
4. It is found that four city councilors, the city manager, the city development director and the city real estate director testified at AAA hearings conducted from April through July, 1990.
5. It is found that the transcripts in question were made by an individual hired by the private developer, CGV.
6. It is found that neither the respondent nor the individuals identified in paragraph 4, above, ever viewed or possessed the transcripts in question; nor is there evidence that any other agencies within this Commission's jurisdiction possess a copy of these transcripts.
Docket #FIC 90-223 Page 2
7. It is therefore concluded that the respondent's failure to provide the complainants with a copy of the transcripts identified in paragraph 2, above, does not constitute a violation of the Freedom of Information Act ("FOIA").
8. It is found that the exhibits identified in paragraph 2, above, were taken from the files of New London and that the respondent has copies of those exhibits as well as the exhibits submitted by other parties before the AAA arbitration panel in question.
9. It is concluded that the exhibits identified in paragraph 2, above, are public records within the meaning of 1-18a(d), G.S.
10. The respondent claims that the exhibits should be exempt from disclosure because the rules of the AAA require in part that "the arbitrator shall maintain the privacy of the hearings unless the law provides to the contrary," and, accordingly, if the complainants had access to the exhibits in question, they could determine the AAA's basis for its decision.
11. The respondent also claims that the parties to the arbitration assumed that the proceeding would be private and that, furthermore, disclosure of the exhibits would constitute an invasion of the AAA's privacy.
12. The respondent also claims that the exhibits in question may be exempt from disclosure pursuant to 1-19(b)(4), G.S.
13. Finally, the respondent claims that the assembly of public records as exhibits for the arbitration proceedings constitutes the work product of counsel and accordingly should be exempt from disclosure.
14. It is concluded that arbitration panel rules, as identified in paragraph 10, above, do not supersede the provisions of 1-19(a), G.S.
15. It is found that the exhibits in question are not part of a personnel, medical or similar file.
16. It is concluded, therefore, that the exhibits in question are not exempt from disclosure pursuant to 1-19(b)(2), G.S.
17. It is also concluded that records not otherwise exempt from disclosure that are compiled for submission in an evidentiary hearing are not records of strategy and negotiation within the meaning of 1-19(b)(4), G.S.
Docket #FIC 90-223 Page 3
18. It is concluded that the respondent's claim outlined in paragraph 13, above, fails to state a statutory exemption from the provisions of 1-19(a), G.S.
19. It is concluded that the respondent's failure to provide the complainants with access to the exhibits identified in paragraph 2, above, constitutes a violation of 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 respondent shall forthwith provide the complainants with access to the exhibits identified in paragraph 2, above, except those records privileged by the attorney-client relationship.
2. That portion of the complaint seeking access to the transcripts in question is dismissed.
Approved by order of the Freedom of Information Commission at its regular meeting of October 24, 1990.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-223 Page 4
PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
ELISSA BASS AND THE DAY
47 Eugene O'Neill Drive
P.O. Box 1231
New London, CT 06320
NEW LONDON CITY MANAGER
c/o David A. Haught, Esq.
Cooney, Scully & Dowling
10 Columbus Boulevard
Hartford, CT 06106
Tina C. Frappier
Acting Clerk of the Commission