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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Saleem
Khan and |
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Complainants |
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against |
Docket #FIC 2001-361 | |
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Commissioner,
State of Connecticut, |
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Respondents |
December 12, 2001 | |
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The above-captioned matter was heard as a contested
case on September 6, 2001, 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.
By letter dated June
21, 2001, the complainants made a written request to the respondent for a copy
of a letter written by Mr. Mark Libby, director of the Office of Emergency
Medical Services, which is an office within the respondent department, in
response to their request for clarification of certain medical control issues
(hereinafter “the letter”).
3.
By letter dated July
3, 2001 the respondents informed the complainants that their request was
denied stating that under §1-210(e)(1), G.S., the requested letter was not a
public record.
4.
By letter dated July
23, 2001 and filed on July 30, 2001, the complainants appealed to this
Commission alleging that the respondents violated the Freedom of Information (FOI)
Act by denying their 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 letter is a public record within the meaning of §1-210(a), G.S.
8.
At the hearing on
this matter, the respondents claimed that the requested letter is permissibly
exempt from disclosure pursuant to §§1-210(b)(1) and (e)(1), G.S., because
it is a draft letter that had to be reviewed and approved by the bureau chief,
Cynthia Denne, of the Bureau of Regulatory Services (hereinafter “the bureau”),
which is another office within the respondent department, before such letter
could be mailed to the complainant. The respondents also claimed that the issue addressed by the
requested letter is the subject of an investigation being conducted by the
bureau and that disclosure to the complainant would compromise that
investigation and undermine any decisions reached as a result of said
investigation.
9.
Section 1-210(b), G.S.,
provides in relevant part that:
[n]othing
in the [FOI] Act shall be construed to require disclosure of . . .
(1)[p]reliminary 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(e)(1),
G.S., provides in relevant part that:
[n]otwithstanding
the provisions of subdivisions (1) and (16) of subsection (b) of this section,
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, 245 Conn. 149, 165 (1998), the Supreme Court
held 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 precedes formal
and informed decision making . . . . It is records of this preliminary,
deliberative and predecisional process that . . . the exemption was meant to
encompass.”
12.
It is found that on
or about May 16, 2001 the complainant, Mr. Kahn, met with Mr. Mark Libby
regarding a medical control issue pertaining to the complainants’ ambulance
service and that at the conclusion of that meeting the complainant Kahn
requested that Mr. Libby commit his comments regarding the issue to writing in
a letter and provide the complainant with a copy of such letter.
13.
It is found that
prior to writing the letter, Mr. Libby consulted with a Dr. Stent, who
provided further comments on the medical control issue, which comments were
considered by Mr. Libby when he drafted the letter.
14.
It is found that on a
date subsequent to the May 16, 2001 meeting, but prior to the hearing on this
matter, Mr. Libby drafted a letter to the complainant addressing the medical
control issue, which letter reiterated many of his comments made to the
complainant at that meeting.
15.
It is found that Mr.
Libby printed the letter on the respondent department’s letterhead,
addressed the letter to the complainant and signed it.
16.
It is found that Mr.
Libby sent a copy of the letter to Ms. Denne for her review, who subsequently
informed Mr. Libby that there was a pending investigation of the issue
addressed in the letter and advised Mr. Libby not to send the letter to the
complainant.
17.
It is found that the
Bureau is the primary office within the respondent department that regulates
medical service providers, such as the complainants.
18.
It is also found that
a decision regarding a medical service issue by the Bureau, particularly after
an investigation, would supercede an opinion from any other office or official
within the respondent department, including that of Mr. Libby.
19.
It is found that if
Mr. Libby sent the letter to the complainant, there would be a risk that the
complainant and his employees would rely on the comments in the letter and act
in a manner that would later conflict with a decision of the Bureau and cause
the complainant and his employees to be in violation of medical service
regulations.
20.
It is found,
therefore, that even though Mr. Libby was confident that his comments to the
complainant during the May 16, 2001 meeting, which were committed to writing
in his letter, were accurate based upon the law, he deferred to Ms. Denne’s
advice and decided not to send the letter to the complainant.
21.
It is found that both
Mr. Libby and Ms. Denne are staff members of the respondent department.
22.
It is found that, Mr.
Libby prepared the letter separate and apart from, and without any knowledge
of, the investigation described in paragraph 16, above.
Therefore, the letter is not part of any preliminary, deliberative or
predecisional process regarding said investigation.
23.
It is found that the
preliminary, deliberative and predecisional process undertaken by Mr. Libby
regarding the letter itself included his May 16, 2001 meeting with the
complainant, his conversations with Dr. Stent, and any drafts of the letter
that were written and revised before he shared the signed letter addressed to
the complainant, with Ms. Denne.
24.
Consequently, it is
found that the letter, as described in paragraphs 14 and 15, above, does not
reflect that aspect of the respondent department’s function that preceded a
formal and informed decision regarding the letter itself, the investigation
being conducted by the bureau, or any other matter.
25.
It is concluded
therefore that the letter is not a preliminary draft within the meaning of
§1-210(b)(1) and (e)(1), G.S., and the exemption claimed by the respondents
does not apply to the letter.
26.
Consequently, it is
concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by
failing to provide the complainant with a copy of the letter.
27.
Notwithstanding the
conclusions in paragraph 25 and 26, it is found that although the letter
represents what Mr. Libby told the complainant during their meeting of May 16,
2001, the statements therein do not necessarily represent the official
position of the respondent department or any of its offices regarding the
medical service issue addressed in said letter and reliance on the letter is
not recommended by the respondent.
The following order
by the Commission is hereby recommended on the basis of the record concerning
the above-captioned complaint.
1. The respondents shall forthwith provide the complainant with a copy of the letter described in paragraph 2 of the findings, above, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2001.
_______________________________________
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:
Saleem
Khan and
Nelson
Ambulance Service
c/o
Craig Lyle Perra, Esq.
Updike,
Kelly & Spellacy, P.C.
One
State Street, PO Box 231277
Hartford,
CT 06123-1277
Commissioner,
State of Connecticut,
Department
of Public Health; and
State
of Connecticut, Department
of
Public Health
c/o
Daniel Shapiro, Esq.
Assistant
Attorney General
55
Elm Street, PO Box 120
Hartford,
CT 06141-0120
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-361/FD/paj/12/18/2001