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