FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

A-Tel,

 

Complainant

 

 

against

Docket #FIC 2000-345

Assistant City Attorney, Office
of the City Attorney, City of Bridgeport,

 

 

Respondents

 January 10, 2001

 

 

 

 

The above-captioned matter was heard as a contested case on September 20, 2000, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      By letter dated May 23, 2000, to the respondent, the complainant requested a copy of “any drafts of the Utility Service Procurement Policy.”

 

3.      By letter dated June 6, 2000, the respondent informed the complainant that only one preliminary draft of that policy exists which is no longer under consideration by the city of Bridgeport. The respondent also informed the complainant that the requested record is exempt from disclosure pursuant to §1-210(b)(1), G.S., because “the city of Bridgeport has determined that (1) the release of said document would cause unnecessary confusion to the public; (2) it is in the public interest for said draft to be retained by this office; and (3) that this public interest outweighs the public interest in disclosing said document.”

 

4.      By letter dated June 26, 2000 and filed on June 28, 2000, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with its request.

 

5.      Section 1-210(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, whether or not such records are required by any law or by any rule or regulation, 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.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

 

6.      Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

7.      It is found that the requested record is a public record within the meaning of §1-210(a), G.S.

 

8.      The respondent contends that the requested record is a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S., and is exempt from mandatory disclosure.

 

9.      Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require 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 . . . .”

 

10.   Section 1-210(c)(1), G.S., provides in relevant part that notwithstanding the provisions of subdivision (1) of subsection (b), disclosure shall be required of:

 

[i]nteragency 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.

 

11.   In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon  . . . whether the actual documents are subject to further alteration . . .” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making . . . . It is records of this preliminary, deliberative and predecisional process that  . . . the exemption was meant to encompass.”  Shew v. Freedom of Information Commission 245 Conn. 149, 165 (1998).

 

12.   It is found that in 1999, pursuant to the request of the co-chairpersons of the city council for the city of Bridgeport, the respondent drafted recommendations for a utility services policy that consisted of two pages of handwritten notes of information that she gathered for said policy from talking with other members of the city council.  The handwritten recommendations constitute the record at issue in this matter.

 

13.   It is found that the respondent met with one of the co-chairpersons of the city council and shared her recommendations for a utility services policy as they were reflected in her notes which recommendations were rejected by said co-chairperson. Subsequently, a new city council was elected with a new chairperson(s) that set a different course for developing a utility services policy, without regard to the respondent’s initial recommendations.

 

14.   It is found that the respondent’s recommendations, as shared with the then co-chairperson, were intended to provide, in a preliminary fashion, suggestions regarding what the utility services policy should include as offered by some of the other council members. 

                                                    

15.   It is found that the requested record reflects that aspect of the city council’s policy development process that preceded formal and informed decision-making and were part of the preliminary, deliberative and predecisional process of developing said policy.

 

16.   It is therefore found that the requested record is a preliminary draft or note within the meaning of §1-210(b)(1), G.S.

 

17.   It is found that the respondent has determined that the public interest in withholding the requested record clearly outweighs the public interest in disclosure.

 

18.   It is also found that while the requested record constitutes a report comprising part of the process by which governmental decisions and policies are formulated . . .” within the meaning of §1-210(c)(1), G.S., such record also constitutes a “preliminary draft  . . . prepared by a member of the staff of a public agency . . . subject to revision prior to submission to or discussion among the members of such agency” within the meaning of said statute. 

 

19.    Based on the foregoing, it is concluded that the requested record is exempt from mandatory disclosure pursuant to §§1-210(b)(1) and 1-210(c)(1), G.S.

 

20.   It is further concluded that the respondent did not violate §§1-210(a) or 1-212(a), G.S., by denying the complainant’s request for 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 complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 10, 2001.

 

 

_________________________________________

Dolores E. Tarnowski

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:

 

A-Tel

c/o Donal C. Collimore, Esq.

Collimore and Collimore

1150 Post Road

Fairfield, CT  06430-6040

 

 

Assistant City Attorney,

Office of the City Attorney, City of Bridgeport

c/o Melanie J. Howlett, Esq.

999 Broad Street

Bridgeport, CT  06604-4328

 

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2000-345/FD/mes/20010111