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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Michael P. Stearne, |
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Complainants |
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against |
Docket #FIC 2001-188 | |
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Superintendent of Schools, |
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Respondents |
October 24, 2001 | |
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The above-captioned matter was heard as a contested case on May 11, 2001, 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. It is found that, by letter dated March 19, 2001, the complainant requested that the respondent provide him with a detailed breakdown of legal expenses for the current and previous year. It is also found that, at such time, the complainant verbally requested that the respondent provide him with access to a response to the Rusconi report prepared by the respondent [hereinafter “the response”].
3. By letter dated April 4, 2001, and filed on April 6, 2001, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by denying him access to the records described in paragraph 2, above.
4. 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 inspect such records promptly during regular office or business hours….
5. With respect to the request for legal bills, it is found that, at the time of the request described in paragraph 2, above, the respondent informed the complainant that he would look into the matter of the legal bills and “get back” to the complainant. However, it is further found that the respondent did not communicate with the complainant regarding the issue of the legal bills until May 2001. It is found that the respondent determined that he did not maintain one record consisting of a detailed breakdown of legal expenses for the current and previous year, but that he did maintain copies of legal bills submitted to the district, which he further determined were not responsive to the complainant’s request.
6. It is found that, by letter dated May 8, 2001, the respondent offered to provide the complainant with access to all legal bills of the school district. It is further found that such records are substantially responsive to the complainant’s request for a detailed breakdown of legal expenses, as described in paragraph 2, above. It is concluded that the respondent violated the promptness provision of the FOI Act, with respect to the legal bills.
7.
With respect to the request for the response, it is found that the
response is a public record within the meaning of §1-210(a),
G.S. The respondent submitted a
copy of the response to the Commission for in camera review.
For identification purposes, the in camera document has
been designated IC2001-188-1.
8. The respondent contends
that the response is a preliminary draft within the meaning of §1-210(b)(1),
G.S., and is exempt from mandatory disclosure.
9. Section 1-210(b)(1), G.S., exempts from mandatory disclosure “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. 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).
11. Upon review of the in camera document described in paragraph 7, above, it is concluded that such document is a preliminary draft within the meaning of §1-210(b)(1), G.S.
12. It is found that the respondent determined that the public interest in withholding the response clearly outweighs the public interest in its disclosure, within the meaning of §1-210(b)(1), G.S.
13. However, §1-201(e)(1), G.S., further provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., 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.
[Emphasis added.]
14. It is found that although the respondent prepared the response as a draft subject to revision, it is also found that the respondent submitted the response to the members of the board of the Amity Regional School District No. 5 for discussion and review.
15. It is further found that the response is an intra-agency recommendation comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S. Accordingly, it is concluded that the response is not exempt from disclosure pursuant to §1-210(b)(1), G.S., and therefore, it is further concluded that the respondent violated the FOI Act by failing to provide a copy of the response to the complainant, as alleged in the complaint
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. Forthwith, the respondent shall provide the complainant with a copy of in camera document IC2001-188-1.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 2001.
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Petrea A. Jones
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:
Michael P. Stearne
57 Humiston Drive
Bethany, CT 06524
Superintendent of Schools
Amity Regional School District No. 5
c/o Daniel P. Murphy, Esq.
Siegel, O'Connor, Schiff & Zangari
171 Orange Street
New Haven, CT 06510
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-188/FD/paj/10/29/2001