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 90-270
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 90-223 and FIC 90-250.
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 July 19, 1990, the complainants alleged that the respondent
denied their July 13, 1990 request for access to all exhibits submitted to an
American Arbitration Association ("AAA") arbitration panel during the
July 12 and 13, 1990 sessions of a hearing AAA conducted between the city of
New London and Congress Group Ventures, Inc. ("CVG") as well as to
any and all transcripts of the testimony given on July 12 and 13.
3. It is found that on July 18, 1990, the
respondent denied the complainants' request, identified in paragraph 2, above.
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 90-270 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 90-270 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 90-270 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