|
FREEDOM OF INFORMATION
COMMISSION |
|||
|
In
the Matter of a Complaint by |
FINAL
DECISION |
||
|
David
Glidden and |
|
||
|
|
Complainants |
|
|
|
|
against |
|
Docket
#FIC 1999-238 |
|
Director, State of Connecticut, Department of Administrative Services, Human Resources Business Center; Communications Director, State of Connecticut, Department of Administrative Services; and State of Connecticut, Department of Administrative Services, |
|
||
|
|
Respondents |
October
13, 1999 |
|
The above-captioned matter was heard as a contested case on August 19, 1999, 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 §1-200(1), (formerly 1-18a(a)), G.S.
2. By letter dated April 30, 1999, the complainant association requested that the respondent department furnish the complainant association with “a list of names and titles of state employees holding non-data processing titles who are considered in-scope for the current data processing outsourcing project” (sometimes herein the “requested record”), and also a copy of Rock Regan’s letter requesting the same information. (The complainant association had previously received a copy of a list of all data processing positions that might be transitioned to a vendor as part of the data processing outsourcing project. Complainants’ Exhibit 3.)
3. By letters dated May 4, 1999 and May 17, 1999, the respondent department provided a copy of the requested Rock Regan letter, and with reference to the requested record, stated that “(a)t the present time there are no employees who satisfy the specific request presented in your letter.”
4. By letter dated and filed with the Commission on May 18, 1999, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by refusing to provide the information requested in the April 30, 1999 letter.
5. At the hearing, the respondents contended that the requested record is a “preliminary draft or note” exempt from mandatory disclosure pursuant to §§ 1-210(b)(1) and 1-210(c)(1), (formerly 1-19(b)(1) and 1-19(c)(1)), G.S.
6. Section 1-210(b)(1), (formerly 1-19(b)(1)), G.S., states that the FOIA 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 1-210(c)(1), (formerly 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. The complainants contend that the form letter sent by the Chief Information Officer of the Department of Information Technology dated December 30, 1998 to various state employees (Complainants’ Exhibit 2) constituted a decision that an individual who received the letter was “in-scope” for purposes of the April 30, 1999 FOIA request. Because the letter included the statement “(y)our transition to the vendor will likely occur ...”, the complainants argue that the individuals who received this form letter were informed concerning a prospective transfer of their employment.
9. It is found that a record substantially within the terms of the April 30, 1999 request does, in fact, exist in the custody of the respondents, in the form of computer disks that were prepared based upon the submissions of various agencies following an April 6, 1999 letter from the Chief Information Officer of the Department of Information Technology to the Commissioner of the Department of Administrative Services (Attachment to Respondents’ Exhibit A).
10. It is also found that the December 30, 1998 letter referenced at paragraph 8, above, was, as a matter of policy, widely distributed, so that if employees were subsequently actually transferred, they and their collective bargaining agents could not claim surprise. Moreover, it is found that the December 30, 1998 letter does not state that its recipient or any other person is “in-scope” or will actually be transferred to another employer.
11. It is further found that the decision concerning who was “in-scope” and who was not “in-scope” to be transferred to the vendor depended, in turn, on which services would be “outsourced”, and that it was never decided in the negotiations with EDS which services would, in fact, be “outsourced”. Moreover, it is found that the price negotiation between representatives of the State of Connecticut and EDS never progressed to the point of an exchange of lists of proposed positions that would be “in-scope” for transfer to EDS.
12. It is found that the various agencies of the state government were never empowered to decide who was “in-scope” for transfer to another employer, but rather were asked to make recommendations with the understanding that their recommendations would not be final.
13. It is found that the Deputy Commissioner of the respondent Department was the individual who would ultimately decide who was “in-scope”. However, he never reached the stage of reviewing the requested record which contained the recommendations of the agencies because the negotiation with EDS did not progress to the point where these recommendations were relevant. The requested record was part of a pre-decisional process that preceded formal and informed decision-making.
14. It is found that the computer disks described at paragraph 9, above, merely represented a compilation, prepared by a member of the staff of the respondent department, of preliminary recommendations by various agencies who were, in general, trying to protect as many employees as they could. Indeed, the “list of names and titles of state employees holding non-data processing titles who are considered in-scope for the current data processing outsourcing project” was a preparatory material that would have been subject to many revisions prior to being finalized by the Deputy Commissioner of the respondent Department.
15. It is concluded that the terms of the April 30, 1999 request should reasonably have been construed to include the computer disks provided in response to the April 6, 1999 letter from the Chief Information Officer of the Department of Information Technology to the Commissioner of the Department of Administrative Services (see paragraph 9, above), notwithstanding the fact that a final decision had not been made by the Deputy Commissioner of the respondent Department concerning who was “in-scope”.
16. Based upon the foregoing, it is also concluded that the requested record was “subject to revision” as the term is utilized in §1-210(c)(1), (formerly 1-19(c)(1)), G.S., and also was a “preliminary draft() and note()” exempt from mandatory disclosure pursuant to §1-210(b)(1), (formerly 1-19(b)(1)), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of
October 13, 1999.
_________________________
Melanie R. Balfour
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:
David Glidden and Connecticut State Employees Association
c/o David Glidden
760 Capitol Avenue
Hartford, CT 06106
Director, State of Connecticut,
Department of Administrative Services,
Human Resources Business Center;
Communications Director, State of Connecticut,
Department of Administrative Services;
and State of Connecticut,
Department of Administrative
Services
c/o Alan Mazzola
Department of Administrative
Services
165 Capitol Avenue
Hartford, CT 06106-1658
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-238/FD/mes/10141999