FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Melanie Giesen and Journal Inquirer,

 

                                Complainants

 

                against                   Docket #FIC 95-188

 

Warren Packard, First Selectman and Oley Carpp, Economic

Development Director, Town of Suffield

 

                                Respondents                        March 27, 1996

 

                The above-captioned matter was heard as a contested case on December 7, 1995, at which time the complainants and the respondents 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 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 May 8, 1995, the Town of Suffield (hereinafter "town") submitted a grant application to the Capitol Region Growth Council (hereinafter "council") for funding of a project to relocate Metal Finish Equipment & Supply Co. Inc., (hereinafter "the company") from East Granby to the town.

 

                3.  It is found that the council approved the funding, described in paragraph 2, above, on May 11, 1995.

 

                4.  It is found that by letters dated May 22, 1995, the complainants requested that the respondents provide them with access to the information contained in the grant application submitted to the council, specifically, a copy of the company's name and letter of commitment (hereinafter "company's name and letter of commitment").

 

                5.  It is found that the respondents denied the request by letter dated May 24, 1995 citing ongoing negotiations and the confidentiality needs of the company.

 

                6.  Having failed to receive access to the company's name and letter of commitment, the complainants, by letter dated June 1, 1995 filed this appeal with the Commission on June 5, 1995, alleging that the respondents violated the Freedom of

 

Docket #FIC 95-188                                             Page 2

 

Information ("FOI") Act by denying them access to the requested name and commitment letter.  The complainants also request the imposition of civil penalties against the respondents.

 

                7.  At the hearing on this matter, the complainants indicated that their request for records included a request for the contract between the town and the company.  However, nothing in the May 22, 1995 requests indicated that the contract was requested, and indeed the town and the company did not enter into a contract until after the date of the filing of this appeal.

 

                8.  This appeal is therefore limited to the records contained in the grant application as of the May 22, 1995 requests and specifically the company's name and letter of commitment.

 

                9.  It is found that the respondents provided the complainants with access to all of the requested records on July 21, 1995.  Consequently, the sole issue before the Commission is whether such access comports with the promptness requirement of 1-19(a), G.S.

 

                10.  Section 1-19(a), G.S. provides in relevant part:

 

                                Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

 

                11. It is found that the requested company name and letter of commitment are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                12.  The respondents contend that their two month delay in providing access to the company's name and letter of commitment was justified because those records were exempt from disclosure pursuant to 1-19(b)(1) and 32-11a, G.S., and in order to honor the company's request for confidentiality.

 

Docket #FIC 95-188                                                   Page 3

 

                13.  Section 1-19(b)(1), G.S., permits a public agency to withhold from disclosure preliminary drafts or notes provided the public agency has determined that the public interest in withholding such records clearly outweighs the public interest in disclosure.

 

                14.  It is found that the company's name and letter of commitment do not constitute preliminary drafts or notes of the respondent agencies, and are therefore not exempt from disclosure pursuant to 1-19(b)(1), G.S.

 

                15.  It is also found that even if the company's name and letter of commitment constitute preliminary drafts or notes they would not be exempt from disclosure by virtue of 1-19(c)(1), G.S., because they constitute a report comprising part of the process by which governmental decisions are formulated.

 

                16.  Section 32-11a(k), G.S., permits the Connecticut Development Authority or the State Department of Economic Development to withhold from disclosure all information contained in any application for financial assistance submitted to the authority or department, and all information obtained by the authority or the department, including financial, credit and proprietory information.

 

                17.  It is found that the company's name and letter of committment are not records of the authority or department within the meaning of 32-11a(k), G.S., and are therefore not exempt from disclosure under that statute.

 

                18.  The respondents contend that the company requested confidentiality because publicity prior to the deal being finalized would alert its competitors and divulge information to its employees prior to its determination that such disclosure was appropriate.

 

                19.  It is found however, that the respondents failed to prove that any federal or state law provides an exemption for the confidentiality request of the company.

 

                20.  Subsequent to the issuance of the Hearing Officer's Report in this matter, the respondents for the first time claimed that the records at issue are exempt from disclosure under 1-19(b)(5), G.S., as commercial or financial information, given in confidence and not required by statute.

 

                21.  It is found, however, that the respondents failed to prove that the requested records are exempt from disclosure under 1-19(b)(5), G.S.

 

Docket #FIC 95-188                                                 Page 4

 

                22.  It is therefore concluded that the respondents violated 1-19(a), G.S., when they failed to promptly provide the complainants with access to the requested company name and letter of committment.

 

                23.  The commission in its discretion declines to impose a civil penalty against the respondents.

 

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

 

                1.  Henceforth the respondents shall strictly comply with the promptness requirement of 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 27, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-188                                             Page 5

 

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:

Melanie Giesen and Journal Inquirer

306 Progress Drive

P.O. Box 510

Manchester, CT 06045-0510

 

Warren Packard, First Selectman and Oley Carpp, Economic Development Director, Town of Suffield

c/o Edward G. McAnaney, Esq.

McAnaney & McAnaney

Suffield Village

Suffield, CT 06078

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission