FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           On June 16, 2003, the respondent filed a motion to dismiss the above-captioned matter pursuant to §1-206(b)(4), G.S.  Section 1-206(b)(4), G.S., provides:

 

Notwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act, or (B) the agency has committed a technical violation of the Freedom of Information Act that constitutes a harmless error that does not infringe the appellant’s rights under said act.

 

            On July 23, 2003, the Commission voted unanimously not to grant the respondent’s motion to dismiss.  The matter was then heard as a contested case on September 22, 2003, at which time the complainants 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 received and filed May 8, 2003, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their April 10, 2003 request for the respondent’s Water Department customer water consumption data for the calendar year 2002.

 

3.  It is found that the City of Norwalk has adopted an ordinance creating a Water Pollution Control Authority which imposes sewer usage fees on local water consumers.

 

4.  It is found that the complainant Finance Director desires to use actual water consumption information provided by the local water companies to bill the customers for sewer usage on a fair and rational basis.

 

5.  It is found that the water consumption data the complainants sought includes the account number, name and address of the customer, consumption, account type, and location of the user.

 

6.  It is found that the City of Norwalk Common Council in April 2003 authorized the Mayor to execute agreements with the respondent and the Second Taxing District so that the complainants could obtain the individual property owners’ water consumption data from the respondent and the Second Taxing District.

 

7.  Section 7-258, G.S., provides that a municipality may enter into an agreement with a water company for the purchase of customer information for use in establishing use charges.

 

8.  Section 7-258(a), G.S., provides in relevant part:

 

For the purpose of establishing or revising such [sewer] connection or use charges and for the purpose of collecting such charges any municipality may enter into agreements with any water company or municipal water department furnishing water in such municipality for the purchase from such water company or municipal water department of information or services and such agreement may designate such water company or municipal water department as a billing or collecting agent of the collector of sewerage system connection and use charges in the municipality. Any water company or municipal water department may enter into and fulfill any such agreements and may utilize for the collection of such charges any of the methods utilized by it for the collection of its water charges.

9.  It is found that the Mayor executed an agreement pursuant to §7-258(a), G.S., with the Second Taxing District on April 7, 2003.

 

10.  It is found that the complainant Finance Director, by letter dated April 10, 2003 to the general manager of the respondent First Taxing District, sent him a copy of the existing agreement with the Second Taxing District, together with a Letter of Intent (“LOI”) to be executed by the respondent and the City of Norwalk, pursuant to §7-258(a), G.S., which was the same as the agreement with the Second Taxing District.

 

11.  It is found that the LOI, which was to be replaced by a detailed agreement, contained terms and conditions specifying the information to be provided, the method for cooperatively developing a report format, estimates of costs, provisions for subsequent data reports, provision for a new report structure when the respondent changed its billing system, and a provision that the respondent would be liable to the City for reasonable attorney’s fees in the event of any breach of the agreement.

 

12.  It is found that the LOI provided that the City would use the information only for the purpose of sewer use charges, that the information would not be accessible to the general public, that the information would be kept confidential, that the information was not subject to release under the FOI Act, that the City would prevent unauthorized access to or copying of the data, and that the information provided to the City was to be considered the property of the respondent.

 

13.  It is found that the respondent, by letter dated April 29, 2003, answered the April 10, 2003 request by stating that no agreement had been reached between the complainants and the respondent similar to the agreement between the complainants and the Second Taxing District; and that the respondent would not surrender water usage records unless ordered to do so by a decision of the FOI Commission that would, in the respondent’s opinion, “stand up in court,” because the respondent believed it had a legal duty to protect the privacy rights of its customers pursuant to §16-262c(e), G.S.

 

14.  It is found that the respondent’s April 29, 2003 answer constituted a denial of the complainant’s April 10, 2003 request for water consumption data.

 

15.  The respondent maintains that the water consumption data is exempt from disclosure pursuant to §16-262c(e), G.S.

 

16.  Section 16-262c(e), G.S.,  provides:

 

No provision of the Freedom of Information Act, as defined in section 1-200, shall be construed to require or permit a municipal utility furnishing electric, gas or water service, a municipality furnishing water or sewer service, a district established by special act or pursuant to chapter 105 and furnishing water or sewer service or a regional authority established by special act to furnish water or sewer service to disclose records under the Freedom of Information Act, as defined in section 1-200, which identify or could lead to identification of the utility usage or billing information of individual customers, to the extent such disclosure would constitute an invasion of privacy.

 

17.  Section 1-210(a), G.S., provides in pertinent 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.   

 

18.  In Cassidy v. Department of Public Utilities, City of Norwich et al., Docket #FIC 1998-293, affirmed on other grounds, 55 Conn. App. 527 (1999), the Commission concluded that records that identify or could lead to identification of utility usage or billing information of individual customers are exempt from disclosure pursuant to §16-262c(e), G.S.

 

19.  In Ron Robilllard et al. v. Tax Collector, Town of Windham, et al., Docket #FIC 1997-110, the Commission concluded that §16-262c(e) does not prohibit disclosure of records of utility usage by corporations or other business entities, because the legislative intent of §16-262c(e), G.S., was to protect the privacy of individuals.

 

20.  While the complainants assert that the water customer information pertains to legitimate matters of public concern, and that disclosure would therefore not invade the individual customers’ privacy within the meaning of §16-262c(e), G.S., it is clear from the LOI, which prohibits disclosure of customer information to the public, that the complainants also believe that such legitimacy applies only to their request as a governmental agency acting under §7-258(a), G.S., not to the public at large.

21.  However, the Commission has consistently ruled in analogous cases that the FOI Act may not be used to vindicate access rights that are created by statutes outside the FOI Act and that are not available to the public at large.  See, e.g., Docket #FIC 2002-268, Aimee Dutkiewicz v. Commissioner, State of Connecticut, Department of Children and Families (granting motion to dismiss under §1-206(b)(4), G.S., because complainant sought to assert right under §17a-28(m), G.S., as parent or guardian to otherwise exempt records of child protection activities);  Docket #FIC 1999-593, Terri Bailey v. Commissioner, State of Connecticut, Department of Children and Families et al.;  Docket #FIC 1998-052, Tracy Arthur Marlow v. Kristen Greene, State of Connecticut, Department of Children and Families et al.; Docket #FIC 93-243, Paul B. Kraus v. State of Connecticut, Department of Children and Families; Docket  #FIC 90-289, Raymond H. and Elaine M.J. Grandmaison v. Department of Children and Youth Services (all concluding that the FOI Commission lacks authority to enforce rights of access for parents and guardians, but not the general public, created by §17a-28, G.S.).

22.  It is concluded that the plain meaning of §1-210(a), G.S.,  is to make non-exempt records available to all members of the public, without regard to the identity of the requester, not to make exempt records exclusively available to other governmental entities only for use in fulfilling governmental functions.  See, e.g., Chief of Police v. FOIC, 252 Conn. 377, 387 (2000) (“[W]hether records are disclosable under the [FOI Act] does not depend in any way on the status or motive of the applicant for disclosure, because the act vindicates the public’s right to know, rather than the rights of any individual.”)

 

23.  The Commission is sympathetic to the complainants’ argument and evidence that their purpose in seeking the requested information is only to implement the fairest and most accurate method of billing for sewer use charges.  However, under established precedent, records that identify or could lead to identification of utility usage or billing information of individual customers are exempt from disclosure pursuant to §16-262c(e), G.S., and the complainants have no special right of access to this information under the FOI Act. 

 

24.  Also under established precedent, §16-262c(e), G.S.,  does not prohibit disclosure of records of utility usage by corporations or other business entities, because the legislative intent of §16-262c(e), G.S., was to protect the privacy of individuals

 

25.  It is therefore concluded that the respondent did not violate §1-210(a), G.S., when it refused to provide records that identify or could lead to identification of utility usage or billing information of individual customers.

 

26.  It is also concluded that the respondent violated §1-210(a), G.S., when it refused to provide records of utility usage by corporations or other business entities.

 

27.  The Commission notes that, notwithstanding its decision in this matter, the parties remain free to negotiate and enter into an agreement for the purpose of establishing or revising sewer connection or use charges and for the purpose of collecting such charges, pursuant to §7-258(a), G.S.

 

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 to the complainant the records of customer water consumption data by corporations or other business entities for the calendar year 2002.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 2004.

 

___________________________________

Ann B. Gimmartino

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:

 

Finance Director, City of Norwalk; and

Pollution Control Authority, City of Norwalk

c/o Louis S. Ciccarello, Esq.

Corporation Counsel

City Hall, PO Box 798

Norwalk, CT  06856-0798

 

First Taxing District, City of Norwalk

c/o James A. Fulton, Esq.

Whitman Breed Abbott & Morgan

100 Field Point Road, PO Box 2250

Greenwich, CT  06830

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-166/FD/abg/03/26/2004