FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on May 13, 2003, 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 filed December 18, 2002, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by refusing the complainant’s November 18, 2002 request for certain documents, and for unedited versions of other documents.

 

3.  It is found that the complainant by letter dated October 29, 2002 requested a copy of the proposals submitted by two construction companies regarding construction management services for the Tomlinson Middle School expansion and renovation project, together with “the written materials generated in connection with any reference checks, the selection of the references to be checked and the results of the reference checks.”

 

4.  It is found that the complainant represents one of the two construction companies, O&G Industries, Inc., that submitted a proposal for the Tomlinson Middle School project.

 

5.  It is found that the respondent provided copies of the two proposals and accompanying forms, totaling about 255 pages,  and copies of the “reference report matrix” for each construction company, each matrix consisting of one page.

 

            6.  It is found that the reference matrices are grids in which a list of 14 questions, such as project size, budget, change orders, turn-around time on change orders, responsiveness, payment of subcontractors on time, deadlines met or missed, overall job rating, and so forth, are answered with respect to five or six projects that each company submitted as references for its work.

 

            7.  It is found that the information contained in the matrices was compiled by the respondent, who telephoned town officials such as board of education or building committee members for each project submitted as a reference by the two contractors, asked a series of questions about the projects, made contemporaneous notes of her conversations, and then transposed what she deemed to be necessary information to the reference matrices (not including, for example, the names of the reference projects or the identities of the individuals she contacted).

 

            8.  It is found that the matrices were prepared by the respondent and submitted to the Tomlinson Middle School building committee in September or October 2002, at which time the respondent made a report concerning her reference checks in executive session.

 

            9.  It is found that the matrices were part of the process by which the building committee voted to select a construction manager for the Tomlinson Middle School project.

 

10.  It is found that the respondent redacted the first two lines of each matrix before providing them to the complainant, in which the project size and budget for the reference projects are described.

 

11.  It is found that, by letter dated November 18, 2002, the complainant requested  that the respondent provide him with copies of the backup documents, notes or original materials from which the matrices were prepared; and also the unedited matrices and, if the information was not to be forthcoming, the reason why it was being withheld.

 

12.  It is found that, by letter dated November 25, 2002, the respondent informed the complainant that “[p]ursuant to Connecticut General Statutes §1-210 subsection b(1) and (4), no additional information will be forthcoming.”

 

13.  It is found that the information redacted from the reference matrices consists of the square footage and total budget for similar projects submitted as references by each construction company.  The redacted information is also contained in, and not redacted from, the proposals provided to the complainant, but it cannot be matched to the evaluative comments in the redacted reference matrices.  The respondent redacted the information because she promised confidentiality to the town officials she contacted to check on the references.  If the information were not redacted, the identity of the project could be determined from the square footage and budget, and the evaluative comments about the two contractors could be attributed to the officials responsible for particular projects previously or currently undertaken by the two contractors.

 

14.  Specifically, the respondent promised confidentiality to the references because she believed that they would not provide candid (in some instances negative) information absent a promise of confidentiality, particularly since several of the references had ongoing projects with the two construction companies.  The respondent believes that the ongoing relationship between other towns and the two contractors could be impaired if the evaluative information were divulged.

 

15.  It is found that the unedited matrices and the notes the respondent made during her telephone reference checks are the only documents responsive to the complainant’s request that were not provided, other than the list of 14 questions asked each reference.  The list of 14 questions are the same 14 questions reflected on the reference matrices.  The list was omitted from the documents provided, but was subsequently provided at the hearing on this matter, and is not at issue.

 

16.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

17.  It is concluded that the unedited matrices and the respondent’s notes are public records within the meaning of §1-200(5), G.S.

 

18.  Section 1-210(a), G.S. provides in relevant part:

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

19.  The respondent maintains that her notes are exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

20.  Section 1-210(b)(1), G.S. provides:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:  (1)  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 ….

 

21.  It is found that the respondent made notes of her telephone conversations so that she would have a recollection of those conversations when she prepared the matrices and when she made her presentation to the building committee, and that the notes of her conversations were not transmitted to anyone else.

 

22.  It is concluded that the notes of the respondent’s telephone conversations are “notes” within the meaning of §1-210(b)(1), G.S.

 

23.  It is found that the respondent determined in good faith that the public interest in withholding the notes clearly outweighed the public interest in disclosure.  Van Norstrand v. FOIC, 211 Conn. 339, 346 (1989).

 

24.  It is concluded that the notes of the respondent’s telephone conversations are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S.

 

25.  At the hearing, the respondent withdrew her claim that the redacted portions of the reference matrices are exempt pursuant to §1-210(b)(4), G.S., as no claim or litigation is or was pending between the respondent and the complainant, but maintains that the redacted information contained in the matrices is nonetheless exempt from disclosure pursuant to §1-210(b)(1), G.S.

 

26.  The complainant contends, however, that the unedited matrices are required to be disclosed pursuant to §1-210(e)(1), G.S.

 

27.  It is found that the reference matrices are not preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.

 

28.  Section 1-210(e)(1) provides:

 

(e)  Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of:

 

(1)  Interagency 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;

 

29.  It is found that the unedited reference matrices are interagency reports already submitted to and discussed by the Tomlinson School building committee in the process of its selection of a construction manager.

 

30.  It is concluded that the reference matrices are required to be disclosed pursuant to §1-210(e)(1), G.S.

 

31.  However, the respondent maintains that if she discloses the unedited version of the reference matrices, she will be unable to obtain the best and most candid answers to questions about the references submitted by the competing contractors, and thus will be unable to make the best deal for the town.  The respondent argues that it could not have been the intent of the legislature in enacting the FOI Act to place the town at such a disadvantage.

 

32.  Contrariwise, the complainant maintains that the anonymity of references does not guarantee candor, but rather frees the reference to make untrue or unsubstantiated comments, knowing that such comments will never be challenged or  rebutted.

 

33.  However, the issue in this case is not which theory of candor is correct, or what the legislature intended in the absence of an applicable exemption to disclosure.  Section 1-210(a), G.S., plainly requires the disclosure of all public records “[e]xcept as otherwise provided by any federal law or state statute ….”

 

34.  Moreover, the Commission has previously announced its intention not to honor a promise of confidentiality in the absence of a statutory exemption under the FOI Act.  See, e.g., Shawn Collins v. Director of Human Resources, State of Connecticut Department of Correction, Docket #FIC 1989-419.

 

35.  It is concluded that no federal law or state statute provides other than for the disclosure of the unedited reference matrices.

 

36.  It is therefore concluded that the respondent violated §§1-210(a) and (e)(1), G.S., by refusing to provide unedited versions of the reference matrices.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The  respondent shall forthwith provide the complainant with unedited copies of the two reference matrices described in the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

June 11, 2003.

 

 

___________________________________

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:

 

Robert L. Trowbridge, Esq.

Trowbridge & Basine, PC

703 Hebron Avenue

Glastonbury, CT  06033

 

Director of Purchasing,

Town of Fairfield

c/o Noel R. Newman, Esq.

Sheehan & Carolan, PC

One Eliot Place

Fairfield, CT  06824

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2002-583FD/mes/06/17/2003