FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by			REVISED FINAL DECISION
Joseph G. Fernandes III,
		Complainants
	against		Docket #FIC 1997-177
Director, Retirement and Benefit Services Division, State of Connecticut, Office of Comptroller,
		Respondents	October 27, 1999

On June 15, 1999, the Superior Court, Hartmere, J., issued a Memorandum of Decision in Docket No. 98 0492646S, remanding the above-captioned matter for further proceedings in accordance with his decision. A Motion to Reargue was filed by the plaintiff-respondent on July 1, 1999 and denied with an explanation on July 15, 1999.

On June 29, 1999, the respondent filed a request that administrative notice be taken of certain facts, which request is hereby granted. After consideration of the entire record, including the decision of the Superior Court, 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 §1-210(b)(1), (formerly 1-19(b)(1)), G.S., and §1-210(c)(1), (formerly 1-19(c)(1)), G.S.

6. Section 1-210(b)(1), (formerly 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 §1-210(c)(1), (formerly 1-19(c)(1)), G.S., however, provides in pertinent part that:

Notwithstanding 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;

8. It is found that the requested record was drafted and transmitted by the respondent to the Deputy State Comptroller during February 1997. It was written to help the Deputy Comptroller evaluate what a division’s staffing needs would be, along with development of possible options for consideration by the Comptroller, in the event that a proposed early retirement plan was implemented at a later time. It was a contingency, planning document, drafted and transmitted by a staff member at a preliminary, pre-decisional stage in the decision-making process of a public agency. The requested record was not submitted to the Comptroller, and the Deputy State Comptroller never thought of himself as the agency decision-maker.

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

10. It is found that the second memorandum did, in fact, revise the requested record prior to submission of the second memorandum to the Comptroller. Moreover, the second memorandum served different purposes than the requested record. The requested record was written to provide longer-term, preliminary planning at the staff level, preceding formal and informed decision-making. The second memorandum was designed to facilitate operational decisions by the Comptroller who is, of course, the head of the agency.

11. It is found that the respondent made a finding that the public interest in withholding the requested record clearly outweighs the public interest in disclosure because disclosure would be disruptive to persons who might be subject to lay-off, upgrade and other terms of the prospective early retirement plan.

12. It is also noted that, since the January 1998 final decision in this matter, the Supreme Court has issued a decision in Shew v. Freedom of Information Commission, 245 Conn. 149 (released June 23, 1998) (hereinafter Shew). Understandably, the Superior Court substantially relied upon Shew in its June 15, 1999 decision, referenced above, in this matter.

13. Based upon the forgoing, it is concluded that the preliminary placement of the requested record in the relevant decision-making process of the Office of Comptroller qualifies it as a “preliminary draft() or note()” pursuant to §1-210(b)(1), (formerly 1-19(b)(1)), G.S.

14. It is also concluded that the requested record was “prepared by a member of the staff of a public agency” and that the subject matter of the requested record was “subject to revision prior to submission to” the Comptroller, as those terms are utilized in §1-210(c)(1), (formerly 1-19(c)(1)), G.S.

15. Based upon the foregoing, it is therefore concluded that the requested record was a “preliminary draft() and note()” exempt from mandatory disclosure pursuant to §1-210(b)(1), (formerly 1-19(b)(1)), G.S., and also was exempt from mandatory disclosure by the terms of §1-210(c)(1), (formerly 1-19(c)(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 27, 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:

Lois A. Brodeur and AFSCME, Local 714

c/o Jason W. Cohen, Esq.

Gagne & Associates

1260 Silas Deane Highway

Wethersfield, CT. 06109

Director, Retirement and Benefit Services Division,

State of Connecticut, Office of Comptroller

c/o Sharon A. Scully, Esq.

Assistant Attorney General

P.O. Box 120 - 55 Elm Street

Hartford, CT 06141-0120

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1997-177/RFD/mes/1102999