FIC2001-257

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Donna D. Convicer,
		Complainants
	against		Docket #FIC 2001-257
Commissioner, State of Connecticut, Department of Banking; and State of Connecticut, Department of Banking,
		Respondent	May 8, 2002

The above-captioned matter was heard as a contested case on July 13, 2001, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this matter was consolidated with Docket #FIC2001-258; Donna D. Convicer v. Attorney General, State of Connecticut, Office of the Attorney General; and State of Connecticut, Office of the Attorney General.

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, by letter dated May 14, 2001, the complainant requested that the respondents provide her with copies of “any reports, memorandum, notes, statements, minutes, tapes or other records pertaining to Spice Glen that are in the possession of any member of the staff of the Banking Commission…. [including] any memorandum)(s) dated February, 2000 addressed to Howard Pitkin regarding Spice Glen and Mechanics Savings Bank; and a 1997 Performance Evaluation regarding the Community Reinvestment Activities of Mechanics Savings Bank” (hereinafter “requested records”).

3. It is found that, by letter dated May 16, 2001, the respondent commissioner acknowledged receipt of the request described in paragraph 2, above, and informed the complainant that she would be contacted after the respondent department’s review of such request.

4. By complaint dated and filed with the Commission on May 24, 2001, the complainant alleged that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by failing to provide her with copies of the requested records.

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

6. It is found that, by letter dated May 31, 2001, the respondents provided the complainant with copies of 47 documents which were responsive to her request; however, the respondents also denied the complainant copies of 137 records, relying on §36a-21(a), G.S., as well as §§1-210(b)(1), (2), and (10), G.S.

7. 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….

8. The respondents submitted copies of 14 documents, described in paragraph 6, above, to the Commission for in-camera review. Such documents are hereby identified as documents IC-2001-257-1 through IC-2001-257-14.

9. It is found that document IC-2001-257-1 is an exemplar of withheld record numbers 56-67, 102-103, 106-108, 110-111, and 117-122. It is further found that such withheld records consist of correspondence, memoranda, and other documents exchanged between Mechanic’s Savings Bank and the Spice Glen Developers.

10. It is found that document number IC-2001-257-2 is an exemplar of withheld record numbers 26, 32, 40-41, 43-44, 68-99, 104-105, 109, 123, 125, and 130-132. It is further found that such withheld records consist of Mechanic’s Savings Bank internal memoranda, minutes of meetings, notes and internal documents regarding the Spice Glen development and loans to principals for Spice Glen and other projects.

11. It is found that document IC-2001-257-3 constitutes withheld record number 101 and that it is the personal financial statement of an individual.

12. It is found that document IC-2001-257-4 is an exemplar of withheld record numbers 28-29, 31, 33, 52-53, 112-116, and 126-129. It is further found that such withheld records consist of Mechanic’s Savings Bank Loan performance sheets, loan data, spreadsheets and financial data regarding customer accounts.

13. It is found that document IC-2001-257-5 is an exemplar of withheld record numbers 54, 100, 124, and 134-137. It is further found that such withheld records consist of construction and loan information for sale of individual lots within Spice Glen.

14. It is found that document IC-2001-257-6 is an exemplar of withheld record numbers 8, 10-13, 15-17 and 133. It is further found that such withheld records consist of correspondence, communications, and e-mails between the Attorney General’s Office and the State Banking Commission.

15. It is found that document IC-2001-257-7 is an exemplar of withheld record numbers 1-7, 14 and 48. It is further found that such withheld records consist of internal State Banking Commission reports, notes, summaries and memoranda regarding the Spice Glen investigation and Mechanic’s Savings Bank investigation.

16. It is found that document IC-2001-257-8 constitutes withheld record number 9, and that portions of such record have been withheld from the complainant, which consist of Federal Deposit Insurance Corporation (FDIC) and Banking Commission reports.

17. It is found that document IC-2001-251-9 is an exemplar of withheld record numbers 9, 18-23, and 35. It is further found that such withheld records consist of FDIC examination reports.

18. It is found that document IC-2001-257-10 is an exemplar of withheld record numbers 24-25, 30, and 55. It is further found that such withheld records consist of appraisals of properties prepared on behalf of Mechanic’s Savings Bank, including correspondence relating to such appraisals.

19. It is found that document IC-2001-257-11 is an exemplar of withheld record numbers 27 and 42. It is further found that such withheld records consist of HUD settlement statements for individual lots and mortgages involving 39 individual borrowers and customers of the bank.

20. It is found that document IC-2001-257-12 is an exemplar of withheld record numbers 34 and 38. It is further found that such withheld records consist of real estate line cards for individual lots and coordinate mortgages.

21. It is found that document IC-2001-257-13 is an exemplar of withheld record numbers 37, 45-47, and 49-51. It is further found that such withheld records consist of correspondence, records and contracts relating to Mechanic’s Savings Bank’s sale of the Spice Glen mortgages.

22. It is found that document IC-2001-257-14 is an exemplar of withheld records 36, 39, and a portion of 9. It is further found that such withheld records consist of a State Banking Examination report and appended worksheets regarding such report.

23. It is found that the complainant is an attorney who represents several homeowners in the Spice Glen Development. The complainant contends that the respondent commissioner should use his statutory discretion to permit release of the requested records in order to protect the individual homeowners whom she represents, rather than the banks.

24. Section 36a-21(a), G.S., provides in relevant part that:

(a) [n]otwithstanding any provision of state law and except as provided in subsection (b) of this section, the following records of the Department of Banking shall not be disclosed by the commissioner or any employee of the Department of Banking, or be subject to public inspection or discovery:

(1) Examination and investigation reports and information contained in or derived from such reports, including examination reports prepared by the commissioner or prepared on behalf of or for the use of the commissioner;

(2) Confidential supervisory or investigative information obtained from a state, federal or foreign regulatory or law enforcement agency; and

(3) Information obtained, collected or prepared in connection with examinations, inspections or investigations, and complaints from the public received by the Department of Banking, if such records are protected from disclosure under federal or state law or, in the opinion of the commissioner, such records would disclose, or would reasonably lead to the disclosure of: (A) Investigative information the disclosure of which would be prejudicial to such investigation, until such time as the investigation and all related administrative and legal actions are concluded; (B) Personal or financial information, including account or loan information, without the written consent of the person or persons to whom the information pertains; or (C) Information that would harm the reputation of any person or affect the safety and soundness of any person whose activities in this state are subject to the supervision of the commissioner, and the disclosure of such information under this subparagraph would not be in the public interest.

25. Upon careful review of the in-camera documents described in paragraphs 15 and 22, above, it is found that such records comprise examination and investigative records and information within the meaning of §36a-21(a)(1), G.S. Accordingly, it is concluded that such records are exempt from the mandatory disclosure provision of the FOI Act.

26. Upon careful review of the in-camera documents described in paragraphs 9 through 14, and 18 through 21, above, it is found that such records comprise information obtained, collected or prepared in connection with examinations, inspections, or investigations, and complaints from the public within the meaning of §36a-21(a)(3), G.S. It is further found that the respondent commissioner is of the opinion that release of such records would lead to the disclosure of investigative information, personal or financial information and or information harmful to personal reputations within the meaning of §36a-21(a)(3), G.S. Accordingly, it is concluded that such records are exempt from the mandatory disclosure provision of the FOI Act.

27. Upon careful review of the in-camera documents described in paragraphs 16 and 17, above, it is found that such records comprise confidential supervisory or investigative information obtained from a state, federal, or foreign regulatory or law enforcement agency within the meaning of §36a-21(a)(2), G.S. Accordingly, it is concluded that such records are exempt from the mandatory disclosure provisions of the FOI Act.

28. With respect to the complainant’s contentions, as described in paragraph 23, above, it is concluded that §36a-21(a)(3), G.S., provides the respondent commissioner with statutory discretion, which this commission cannot override.

29. Based on the findings and conclusions above, it is concluded that the respondents did not violate the FOI Act, as alleged in the complaint. Accordingly, it is not necessary to address the respondents’ further claims 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 May 8, 2002.

_______________________________________

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:

Donna D. Convicer

41 Hebron Avenue

Glastonbury, CT 06033

Commissioner, State of Connecticut,

Department of Banking; and State

of Connecticut, Department of Banking

c/o Mark A. Milano, Esq.

Milano & Wanat LLC

471 East Main Street

Branford, CT 06405

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-257/FD/paj/5/13/2002