FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of a
Complaint by Final Decision
Meriden Realty
Association,
Complainant
against Docket #FIC 94-14
Connecticut
Development Authority and Connecticut Department of
Economic Development,
Respondents June 8, 1994
The above-captioned matter was heard
as a contested case on March 25, 1994 at which time the complainant and
respondents appeared and presented testimony, exhibits and argument on the
complaint. The case caption has been
changed to correctly identify the complainant in this matter.
After consideration of the entire
record, the following facts are found and conclusions of law are reached:
1. The
respondents are public agencies within the meaning of 1-18a(a), G.S.
2. It
is found that on December 21, 1993, the complainant telephoned the respondent
Connecticut Development Authority (hereinafter "CDA"), and the
respondent Connecticut Department of Economic Development (hereinafter
"DED"), and requested copies of four categories of documents
concerning Canberra Industries:
(a) tax
abatements;
(b) its
relocation to the Teleco facility in Meriden, Connecticut;
(c) the
respondent CDA's issuance of a one million dollar guaranteed loan;
(d) the
respondent DED's issuance of a one million dollar grant; and
(e) any
aid or assistance, including but not limited to, financial aid given to
Canberra by either the respondent CDA or DED in connection with its relocation
to the Teleco facility.
Docket #FIC 94-14 Page Two
3. Thereafter,
by letter to each respondent dated December 23, 1993 (hereinafter
"December request"), the complainant again requested copies of the
documents described in paragraph 2 of the findings, above.
4. It
is found that each respondent denied the complainant's oral request on December
21, 1993, and failed to respond to, or comply with the subsequent December
requests.
5. By
letter to the Commission dated January 11 and filed January 14, 1994, the
complainant appealed the respondents' denials.
6. It
is found that the complainant is not seeking financial, proprietary or trade
secret information, or other statutorily exempt information concerning Canberra
Industries.
7. It
is found that on or about March 11, 1994, the respondent DED replied to the
complainant's December request and enclosed two of the requested documents with
the written reply.
8. It
is found that sometime thereafter the respondent DED also provided the
complainant with a copy of a third document concerning the assistance agreement
between Canberra Industries and DED.
9. It
is found that both the CDA and DED have at least one file folder full of
documentation concerning Canberra Industries.
10. It
is found that the requested records are public records as defined by 1-18a(d),
G.S.
11. However,
each respondent maintains that 32-11a(k), G.S., protects the requested
records from disclosure.
12. Section
32-11a(k), G.S., states that:
All information contained in any
application for financial assistance submitted to the [CDA] or [DED], and all
information obtained by the [CDA] or [DED] with respect to any person or
project, including all financial, credit and proprietary information, shall be
exempt from the provisions of subsection (a) of section 1-19 [G.S.].
13. It
is found that the respondent CDA and DED have failed to prove that the only
documentation in their possession concerning Canberra Industries is either
"contained in an application for financial assistance" or information
"obtained by the CDA or DED" in accordance with 32-11a(k), G.S.
Docket #FIC 94-14 Page Three
14. Furthermore,
despite the respondents' claim that 32-11a(k), G.S., applies to the
records at issue in this case, it is found that the respondents have a policy
and practice of disclosure of information similar to the information requested
in this case.
15. It
is found that the respondents have disclosed information about business
enterprises that they have chosen to fund and/or assist financially, including
Canberra Industries.
16. Specifically,
it is found that sometime prior to the complainant's records requests a press
conference was held by the respondents at which the CDA and DED's involvement
with Canberra Industries was discussed.
17. The
respondents conceded that had the complainant attended the press conference
concerning the CDA and DED's involvement with Canberra Industries some of the
information at issue in this matter might have been revealed to him at that
time.
18. It
is concluded that at their discretion the respondents construe the exemption
contained in 32-11a(k), G.S., as permissive rather than mandatory, and
they have no written or articulable policy concerning disclosure in those
instances.
19. The
respondent DED acknowledged that it is able to prepare a log of the documents
that it claims are exempt from disclosure pursuant to 32-11a(k), G.S. The log could describe each document without
disclosing either the document itself or its contents.
20. In
an effort to facilitate the decision-making process in this case, the
undersigned hearing officer requested that each respondent prepare such a log
of the documents for which the exemption contained in 32-11a(k), G.S., is
claimed.
21. Specifically,
Commissioner Fitch requested the CDA and DED to use the log to identify and
describe the documents for which the 32-11a(k), G.S., exemption is being
claimed and then to produce that log--not the documents at issue--for in camera
inspection by the Commission.
22. However,
by objection dated and filed with the Commission on April 4, 1994, each
respondent failed and refused to comply with the request to produce a log of
the subject records, or to produce the records for an in camera review.
Docket #FIC 94-14 Page Four
23. It
is therefore concluded that the respondents failed to prove that each of the
records withheld from disclosure is wholly or partially exempt from disclosure
pursuant to 1-19(a), G.S., by operation of 32-11a(k), G.S.
24. It
is further concluded that the respondents violated 1-15 and 1-19(a),
G.S., by not providing the complainant with timely access to the requested
records.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The
respondent CDA and DED shall forthwith provide the complainant with a copy of
each of the documents contained in any and all files in their posession
concerning Canberra Industries.
2. In
complying with paragraph 1 of this order, the respondent may redact all
financial, proprietary and trade secret information concerning Canberra
Industries which has not already been made public.
3. For
each redaction that is made pursuant to paragraph 2 of this order, the CDA or
DED shall provide the complainant with a characterization of the information
redacted and a statement of the statutory basis for its redaction.
4. The
Commission notes that the presentation of this case by the respondents, and
their failure to make available to the Commission all information that would
aid in rendering a full and fair decision in this matter, made it extremely
difficult for the Commission to determine the applicability of claimed
exemptions to disclosure. Consequently,
where appropriate, inferences have been drawn against the respondents because
of their obfuscation.
Approved by Order of
the Freedom of Information Commission at its regular meeting of June 8, 1994.
Debra L.
Rembowski
Clerk of the
Commission
Docket #FIC 94-14 Page Five
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:
Meriden Realty
Association
c/o Matthew J.
Forstadt, Esq.
David W. Rubin, Esq.
Schatz & Schatz,
Ribicoff & Kotkin
1 Landmark Squre,
Suite 1700
Stamford, CT
06901-2676
Connecticut
Development Authority and
Connecticut Department
of Economic Development
c/o John Mahoney, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103
c/o Shelagh P.
McClure, Esq.
Assistant Attorney
General
110 Sherman Street
Hartford, CT 06105
Debra L.
Rembowski
Clerk
of the Commission