FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Kathryn Ekstrom,
Complainant
against Docket
#FIC 1996-003
Ryk Nelson, Cromwell First Selectman,
Respondent November
13, 1996
The
above-captioned matter was heard as a contested case on May 8, 1996, at which
time the complainant and the respondent appeared 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 respondent is a public agency within the
meaning of §1-18a(a),
G.S.
2. By letter of complaint filed with this
Commission on January 3, 1996, the complainant alleged that the respondent violated
the provisions of the Freedom of Information (“FOI”) Act by failing to provide
to her a copy of a town attorney’s opinion she requested on December 21,
1995. The complainant requested that
civil penalties be assessed against the respondent for his denial. She also requested that this Commission
review the facts concerning other instances in which the complainant has made
requests to the respondent and seeks the Commission’s recommended procedures
for the making of such requests and an opinion on what would be considered a
reasonable time for a response.
3. It is found that at its December 13, 1995
meeting, the board of selectmen sought a legal opinion from the town attorney
as to whether the complainant, as an elected official, could simultaneously
serve as an appointed member of the economic development commission.
4. It is found that on December 21, 1995, the
complainant requested that the respondent supply to her a copy of the town
attorney’s legal opinion more specifically identified in paragraph 3, above.
5. It is found that on December 21, 1995, the
respondent denied the complainant’s request stating that what he had at that
time was a “draft” copy and claiming that it was his “executive privilege” to
withhold this draft copy. He also
indicated that he would provide to the complainant a copy of the final legal
opinion which he expected to receive the next day.
6. It is found that when the complainant
arrived at town hall the next day, December 22, 1995, she promptly received the
final legal opinion requested.
7. At the hearing into this matter, the sole
issue for determination was whether the complainant was improperly denied a
copy of the draft legal opinion received by the respondent and
identified in paragraphs 3, 4, and 5, above (“draft opinion”).
8. It is found that the respondent received the
draft opinion from the town attorney on or about December 15, 1995.
9. It is found that the draft opinion is a
public record within the meaning of §1-18a(d),
G.S.
10. Section 1-19(a), G.S., in relevant part
states: [e]xcept as otherwise provided by federal law or state statute, all
records maintained or kept on file by any public agency … shall be public
records and every person shall have the right to inspect such records promptly
… or to receive a copy of such records in accordance with the provisions of
section 1-15.”
11. Section 1-19(b)(1), G.S., in relevant part
states: “[n]othing in sections 1-15,
1-18a, 1-19 to 1-19b , inclusive, and 1-21 to 1-21k, inclusive, shall be construed
to require disclosure of (1) preliminary drafts or notes provided the public
agency has determined that the public interest in withholding such documents
clearly outweighs the public interest in disclosure ….”
12. Section 1-19 ( c) G.S., also provides,
however: “[n]otwithstanding the
provisions of subdivisions (1) and (16) of subsection (b) of this section,
disclosure shall be required of (1) interagency or intra-agency memoranda or
letters, advisory opinions, recommendations or any report comprising part of
the process by which governmental decisions and policies are formulated, except
disclosure shall not be required of a preliminary draft of a memorandum,
prepared by a member of the staff of a public agency, which is subject to
revision prior to submission to or discussion among the members of such agency
….”
13. It is found that the draft opinion was
subject to change by the town attorney at the direction of the respondent, and
the respondent’s intent was to give the final opinion to the board of selectmen
on Friday, December 22, 1995.
14. The respondent claims that the draft opinion
is exempt from disclosure pursuant to that portion of §1-19(
c), G.S., which provides in pertinent part:
…
disclosure shall not be required of a preliminary
draft
of a memorandum, prepared by a member of the
staff
of a public agency, which is subject to revision
prior
to submission to or discussion among the members
of
such agency ….
15. It is found that the town attorney is
neither a member of the first selectman’s staff nor a member of the board of
selectman’s staff within the meaning of §1-19(
c), G.S.
16.
It is therefore concluded that the respondent failed to prove that the
draft opinion is exempt from disclosure pursuant to §§
1-19(b)(1) and 1-19(c ), G.S.
17. The respondent alternatively argues that
because the draft opinion was in fact not changed prior to the publication of
the final opinion, the complainant was not actually denied any “information” by
the respondent.
18. The respondent’s argument identified in
paragraph 17, above, fails to state an exemption to the public disclosure
provisions of §1-19(a),
G.S.
19. This Commission takes administrative notice
of the final decision in contested case docket #FIC 94-391, Eleanor
Corciullo against Ryk Nelson, Cromwell First Selectman, which orders the
respondent to henceforth strictly comply with the provisions of §1-15(a),
G.S., and to arrange for an informational workshop to be conducted by the staff
of this Commission. The respondent is
therein also advised of the civil penalty provisions of the FOI Act.
20. It is concluded that the respondent violated
the provisions of §1-15(a),
G.S., by failing to provide a copy of the requested draft opinion to the
complainant.
21. It is also found that the respondent’s
violation of the complainant’s rights conferred under §1-15(a),
G.S., was without reasonable grounds.
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 to
the complainant a copy of the draft opinion identified in the findings, above,
free of charge.
2. Henceforth the respondent shall strictly
comply with the requirements of §1-15(a),
G.S.
3. Within forty-five days of the date of the
mailing of the notice of final decision in this case, the respondent shall
remit to this Commission a civil penalty payment in the amount of one hundred
dollars ($100.00).
4. The Commission recommends to the respondent
that he familiarize himself with the provisions of §1-21k(b),
G.S., concerning the failure to comply with an order of this Commission.
5. In response to the questions addressed by
the complainant and more fully described in paragraph 2 of the findings, above,
the complainant is invited to call Commission staff during regular office hours
for informal consultation concerning the applicability of the provisions of the
FOI Act.
Approved by Order of the Freedom of Information
Commission at its regular meeting of November 13, 1996.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
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:
Kathryn Ekstrom
c/o
Joseph E. Milardo, Jr., Esq.
Jozus, Milardo & Thomasson
73 Main Street
Middletown, CT 06457
Ryk Nelson, Cromwell First Selectman
c/o Paul
D. Buhl, Esq.
49 Main Street
Middletown, CT 06457
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-003/FD/eal/112296