FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Rudolph Netsch Construction Company, Inc., |
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Complainant |
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against |
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Docket #FIC 1999-437 |
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T. R. Anson, Commissioner, State of Connecticut, |
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Respondents |
April 12, 2000 |
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The above-captioned matter was
heard as a contested case on December 6, 1999, at which time the complainant
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),
G.S., (formerly §1-18a(1),
G.S.).
2. It is found that by letter dated August 24, 1999, the complainant, through its attorney, requested that the respondents make available the following records for copying and/or inspection:
a. any change order requests, change order proposals or change orders submitted to or issued by the Department relating to the [Gillette Castle project (hereinafter “the project”)];
b. any documents which reflect changes to or modifications of the original project specifications and/or project drawing;
c. any documents which reflect the progress of the project to date and/or percentage of completion of the project, including but not limited to project schedules and schedules of values/applications for payment;
d. all meeting minutes for the project; and
e. all subcontracts for the subcontractors listed on Thomas J. Kronenberger & Sons Companies, Inc.’s August 5, 1995 bid submission (page 9 of 10 Proposal Form).
3. It is found that by letter dated August 27, 1999, the respondent commissioner acknowledged receipt of the request described in paragraph 2, above.
4. It is found that by letter dated September 14, 1999, the respondent financial officer denied the complainant’s request, citing §1-213(b)(1), G.S.
5. Having
failed to receive the requested records, the complainant, in an appeal dated
and filed September 20, 1999, alleged that the respondents violated the
Freedom of Information [hereinafter “FOI”] Act by denying access to the
requested records. The
complainant requested the imposition of civil penalties against the
respondents.
6. It is found that, at all
times pertinent to this matter, the parties were engaged in litigation in the
Superior Court, Judicial District of Hartford, which litigation commenced
prior to the request described in paragraph 2, above. It is further found that the records described in paragraph
2, above, were the subject of a September 21, 1999, subpoena duces tecum
issued by the plaintiff in such matter, which is the complainant herein, to
the defendants in such matter, which are the respondents herein.
7. It is further found that
the respondents herein moved to quash the subpoena described in paragraph 6,
above; however, the court described therein ordered disclosure of the
requested records.
8. It is also found that
the requested records were provided to the complainant pursuant to the court
order described in paragraph 7, above, prior to the hearing in this matter,
and, further, that the complainant no longer seeks access to, or copies of,
such records. Rather, as
described in paragraph 5, above, the complainant seeks from the Commission a
conclusion that the denial as described in paragraph 4, above, was in
violation of the FOI Act, in addition to the imposition of civil penalties.
9. The respondents first contend, that since the records at issue were provided to the complainant, the complainant is not aggrieved; however, it is concluded that the Commission has jurisdiction over the complaint filed in this matter. See §1-206(b)(1), G.S.,[formerly §1-21i(b)(1), G.S.], (“[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the [FOI] Act may appeal therefrom to the[FOI] Commission, by filing a notice of appeal with said commission”).
10. It is concluded
that the records at issue are public records within the meaning of §1-210(a),
G.S., [formerly §1-19(a),
G.S.].
11. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:
"[e]xcept as otherwise provided by any 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 during regular office or business hours or to receive a copy of such records…."
12. The respondents contend that disclosure of the requested records to the complainant pursuant to an FOI request would “limit the rights of litigants…under the laws of discovery of this state” within the meaning of §1-213(b)(1), G.S., (formerly §1-19b(b)(1), G.S.).
13. Section §1-213(b)(1), G.S., [formerly §1-19b(b)(1), G.S.], provides in relevant part that:
[n]othing in the [FOI] Act shall be deemed in any manner to…affect the status of judicial records as they existed prior to October 1, 1975, nor to limit the rights of litigants… under the laws of discovery of this state….
14. In Chief of Police, Hartford Police Department v. FOIC, 52 Conn. App. 12 (1999) [hereinafter “ Chief of Police”], the Appellate Court held that §1-213(b)(1), G.S. [formerly §1-19b(b)(1), G.S.], does not provide an exemption from disclosure pursuant to the FOI Act for records also sought through use of the civil discovery process. Rather, the court therein concluded that §1-213(b)(1), G.S. [formerly §1-19b(b)(1), G.S.], should be interpreted as prohibiting the use of the FOI Act to restrict the rights of parties seeking information through discovery, and, moreover, that the FOI Act and the rules of discovery provide independent methods for obtaining information, except where disclosure pursuant to the act would limit the discovery rights of litigants.
15. It is found that the respondents failed to prove that release of the records described in paragraph 2, above, would limit their discovery rights in the litigation described in paragraph 6, above. It is therefore concluded that §1-213(b)(1), G.S. [formerly §1-19b(b)(1), G.S.], does not provide a basis to withhold such records.
16. The respondents further contend that §52-148(e)(c), G.S., is both a specific statute which should take precedence over the general provisions of the FOI Act, and a statute exempting records from mandatory disclosure pursuant to §1-210(a), G.S. [formerly §1-19b(b)(1), G.S.]
17. Section 52-148e(c), G.S., provides in pertinent part:
[a]ny person to whom a subpoena commanding production of books, papers, documents or tangible things has been directed may, within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than fifteen days after service, serve upon the issuing authority designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.
18. It is concluded that §52-148(e)(c), G.S., governs with respect to the civil discovery process, which is an independent method for obtaining information, as described in paragraph 14, above. It is further concluded that such statute does not operate to exempt the information at issue from mandatory disclosure under the FOI Act, as contended by the respondents in paragraph 16, above. Moreover, it is further concluded that nothing in such statute requires the respondents/defendants to withhold requested records and it is again noted that the court in the pending civil matter ordered disclosure of the requested records.
19. It is further concluded that the respondents violated §1-210(a), G.S. [formerly §1-19(a), G.S.], by failing to promptly provide the complainant with access to the records described in paragraph 2, above.
20. The Commission takes administrative notice of the fact that, as of the date of the denial described in paragraph 4 of the findings, above, the Supreme Court granted the plaintiff’s petition for certification to appeal Chief of Police, and that the case has been argued before that Court but not yet decided. It is found that, given such fact, the respondents’ violation of §1-210(a), G.S. [formerly §1-19b(b)(1), G.S.], was not without reasonable grounds and therefore no civil penalty is warranted.
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 disclosure provisions of the FOI
Act.
Approved by Order of the Freedom of Information Commission at its regular meeting of
April 12, 2000.
_________________________
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:
Rudolph Netsch Construction Company, Inc.
c/o Atty. Joseph B. Mathieu
Michelson, Kane, Royster & Barger, PC
93 Oak Street
Hartford, CT 06106-1552
T. R. Anson, Commissioner, State of Connecticut, Department of Public Works; Bruce Cornish, Chief Financial Officer, State of Connecticut, Department of Public Works; and State of Connecticut, Department of Public Works
c/o Atty. Charles H. Walsh
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-437FD/mrb/04/19/00