FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Lois A. Brodeur and AFSCME, Local 714,

Complainants

against Docket #FIC 1997-177

Director, Retirement and Benefit Services Division,

State of Connecticut, Office of Comptroller,

Respondent January 28, 1998

The above-captioned matter was heard as a contested case on October 8, 1997, at which time the complainants 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. On May 30, 1997, the complainants delivered to a representative of the respondent a written request for a copy of “a memo [sent] to the Department of Administrative Services sometime in March 1997 requesting an upgrading for Mr. Russell” (the “requested record”).

3. On June 4, 1997, a representative of the respondent telephoned complainant Brodeur, informing her that the respondent would not release the requested record to the complainants.

4. By letter dated June 9, 1997, and filed on June 10, 1997, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide the complainants with a copy of the requested record.

5. The respondent contends that the requested record is a “preliminary draft or note” exempt from mandatory disclosure pursuant to §§1-19(b)(1) and 1-19(c)(1), G.S.

6. Section 1-19(b)(1), G.S., states that the FOI Act shall not require mandatory disclosure of:

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….

7. Section 1-19(c)(1), G.S., however, provides in pertinent part that:

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….

8. It is found that the requested record was a completed memorandum drafted and initially sent by the respondent to the Deputy State Comptroller during February 1997. It was a completed but preliminary record, in the sense that it was edited into completed and finalized form, but at the same time, it was a planning document at a preliminary stage of a decision-making process in a public agency. It was written to help evaluate what a division’s staffing needs would be, along with possible options, in the event that a proposed early retirement plan was implemented at a later time.

9. It is found that, four or five months later in June or July 1997, after the early retirement plan was in fact implemented, the respondent sent the Deputy State Comptroller a second, similar but revised memorandum, which, unlike the requested record, included recommendations that were ripe for actual implementation (“the second memorandum”).

10. It is found that the requested record and the second memorandum were separate documents because of the interval of time between February 1997 and June or July 1997, and also because the documents served different though related purposes. The requested record was written to provide commendable longer-term, preliminary planning, while the second memorandum was designed to facilitate operational decisions.

11. It is, therefore, found that this case poses the following legal issue: when a record, such as the requested record, is completed and finalized but contains subject matter that is subject to revision in a later record, such as the second memorandum, is the requested record a “preliminary draft or note” exempt from mandatory disclosure pursuant to §§1-19(b)(1) and 1-19(c)(1), G.S..

12. It is also noted that the exemption for “preliminary drafts or notes”, set forth at §§1-19(b)(1) and 1-19(c)(1), G.S., would benefit from the enunciation of “bright line” rules of interpretation, so that public officials will be able to perform their daily business with a clear sense of which records are subject to mandatory disclosure and which are exempt therefrom. Specifically, the parties herein and others have at times raised a degree of question concerning whether “preliminary” refers to the placement of the record in the decision-making process of a public agency (see Wilson v Freedom of Information Commission, 181 Conn. 324 (1980) and the majority decision in Van Norstrand v. Freedom of Information Commission, 211 Conn. 339 (1989)), or whether “preliminary” refers to the status of the specific record in the process of editing to completed and finalized form (see both the majority decision and the dissent in Van Norstrand, supra).

13. Based upon the forgoing, it is concluded that the term “subject to revision”, as utilized in §1-19(c)(1), G.S., applies to the specific record and not the subject matter of the record, so that a given record must be “subject to revision” in order to be exempt as a “preliminary draft or note”. This conclusion is required by the meaning of the nouns that follow the adjective “preliminary”, namely the terms “draft” and “note”. (It is also observed, parenthetically, that the subject matter of many records is “subject to revision”, including, for instance, collective bargaining agreements and contracts generally. A collective bargaining agreement or a contract generally is not exempt from disclosure as a “preliminary draft or note”, simply because it has been amended and its substance revised at a later date by agreement of the parties.)

14. It is therefore concluded that the requested record, which has been edited into completed and finalized form, as found at paragraphs 5 and 7, above, is not a “preliminary draft or note”, as the term is utilized in §1-19(b)(1), G.S. Conversely, it is also concluded that the preliminary placement of the requested record in the decision-making process of a public agency does not qualify it for exemption from mandatory disclosure as such a “preliminary draft or note”.

15. It is finally concluded that the respondent violated §§1-19(a) and 1-15(a), G.S., when the respondent failed to provide the complainants with a copy of the requested record.

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

1. The respondent shall provide a copy of the requested record to the complainants forthwith.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 28, 1998.

_________________________

Doris V. Luetjen

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:

Lois A. Brodeur and AFSCME, Local 714

129 Delaware Avenue

Waterbury, CT 06708

Director, Retirement and Benefits Services Division,

State of Connecticut, Office of the Comptroller

c/o Sharon A. Scully

55 Elm Street

Hartford, CT 06106

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-177/FD/tcg/01281998