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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Robert Westervelt and The Day, |
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Complainant |
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against |
Docket #FIC 2000-218 |
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Chairman,
Water Pollution Control Authority, |
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Respondents |
July 26, 2000 |
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The above-captioned matter was heard as a contested
case on June 2, 2000, 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),
G.S.
2. It is found that, on April 28, 2000, and May 1, 2000, the complainants requested that the respondents provide them with a copy of a record, which, by stipulation of the parties, shall be hereinafter identified as “the Diagnostic Assessment”. It is further found that the respondents denied such requests on May 1, 2000.
3. Having been denied the requested copy of the Diagnostic Assessment, by letter dated and filed with the Commission on May 8, 2000, the complainants alleged that such denial constituted a violation of the Freedom of Information [hereinafter “FOI”] Act. By such letter, the complainants also alleged that the respondents violated the FOI Act by improperly conducting a discussion in executive session. However, because such complaint does not specify the date of such executive session, this Commission lacks jurisdiction to address such allegation.
4. Section 1-210(a), G.S., provides in relevant part that:
"Except 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 receive a copy of such records in accordance with the provisions of
section 1-212."
5. It is found that the Diagnostic Assessment is maintained by
the respondents and is a public record within the meaning of §1-210(a),
G.S.
6. The respondents contend that the Diagnostic Assessment is
exempt from mandatory disclosure by virtue of §§1-210(b)(4),
and 1-210(b)(7), G.S.
7. Section §1-210(b)(4), G.S., exempts “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled. . . .”
8. It is found that on September 21, 1999 the respondent authority approved a contract with the engineering firm of Fay, Spofford and Thorndike, Inc. to create the Diagnostic Assessment, which is a study of wastewater odor control problems in Montville.
9. It is found that, on November 8, 1999, a lawsuit was filed by several residents of the town of Montville against the respondents, related to the issue of the odor problem.
10. It is found that, on March 20, 2000, the respondents received the Diagnostic report from Fay, Spofford and Thorndike, Inc.
11. It is found that the Diagnostic Assessment is being used by the respondents with respect to possible settlement of the lawsuit described in paragraph 9, above. It is further found that such record is a record pertaining to strategy and negotiations with respect to such pending lawsuit, within the meaning of §1-210(b)(4), G.S.
12. The complainants contend that the Diagnostic Assessment cannot fall within the scope of §1-210(b)(4), G.S., as it was commissioned prior to the filing of the lawsuit described in paragraph 9, above. However, such fact does not invalidate the applicability of such exemption, since litigation was pending at the time of the request described in paragraph 2, above. See Stamford v. Freedom of Information Commission, 241 Conn. 310, 319 (1997).
13. It is concluded that the Diagnostic Assessment is exempt from mandatory disclosure by virtue of §1-210(b)(4), G.S., until the pertinent litigation has been finally adjudicated or otherwise settled. It is further concluded that the respondents did not violate the FOI Act, as alleged in the complaint.
14. Considering the conclusions reached in paragraph 13, above, it is not necessary to address the respondents’ alternate claim of exemption.
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 July 26, 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:
Robert Westervelt and The Day
PO Box 1231
New London, CT 06320
Chairman,
Water Pollution Control Authority, Town of Montville; and Water Pollution
Control Authority, Town of Montville
c/o Atty. Barbara A. Arnold
Andrews, Cosgrove & Young, PC
216 Broad Street
New London, CT 06320
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC2000-218FD/mrb/07/27/00