FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on April 19, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2004-187; Office of the Governor of Connecticut v. State of Connecticut, House of Representatives, Select Committee of Inquiry and the Matter of Petition for Declaratory Ruling #95, Office of the Governor of Connecticut, Petitioner, filed April 14, 2004.  

 

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.  On April 16, 2004, the respondent filed a motion to dismiss this matter, pursuant to §1-206(b)(4), G.S.

 

3.  Section 1-206(b)(4), G.S., provides that:

 

“[n]otwithstanding 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.

 

            4.  The respondent contends that the Commission lacks subject matter jurisdiction since the issue before the Commission, a request for and denial of copies of records, as described in paragraphs 8 and 9 below, is moot or soon will be moot, since the General Assembly has passed House Bill 5545 (February 2004 session). 

5. House Bill 5545, section 2(a), states:

“Sec. 2. (NEW) (Effective from passage) (a) Notwithstanding any provision of the general statutes, during any inquiry, investigation, impeachment or other proceeding conducted pursuant to Article Ninth of the Connecticut Constitution that is commenced on or after January 1, 2004, by the House of Representatives, all information, records of interviews, reports, statements, depositions, notes, memoranda or other data in the custody of or obtained or prepared by the House of Representatives, any committee established by the House of Representatives in furtherance of the purposes of said Article Ninth, the staff of the House of Representatives or the staff of any such committee shall not be subject to the provisions of section 1-210 of the general statutes, as amended, until such committee transmits its final report to the House of Representatives, provided the committee shall have discretion to disclose any such information prior to the transmittal of the final report.  Information provided to the committee by a public agency that is otherwise disclosable by the public agency pursuant to the provisions of section 1-210 of the general statutes, as amended, shall at all times be disclosable by the originating public agency. Nothing in this section shall be construed to mean that any individual waives any privilege provided by law when providing a document or any other information to any such committee.”

            6.  House Bill 5545 has passed both houses of the General Assembly and was transmitted to the Governor on April 14, 2004.  To date, the Governor has neither signed nor vetoed the bill.  Pursuant to Article Fourth, Section 15 of the Constitution of the State of Connecticut, if the Governor neither signs nor vetoes the bill, it will become effective on April 21, 2004.  Although the Governor has indicated that he will neither sign nor veto the bill, he can change his mind up until 11:59 p.m. on April 20, 2004 and the Commission obviously cannot know if and when such a veto would be overridden by the General Assembly.  

 

7.  It is concluded that, as of the date of the hearing in this matter, the Commission has subject matter jurisdiction in this matter, and therefore, the respondent’s motion to dismiss, pursuant to §1-206(b)(4), G.S., is hereby denied.

 

8.  It is found that, by letter dated April 5, 2004, the complainant requested a copy of “all documents and records received by the Select Committee of Inquiry, its attorneys or investigators related to or concerning Kurt Claywell or Claywell Electric.”

 

9.   It is found that, by letter dated April 12, 2004, the respondent denied the request described in paragraph 8, above, contending that §§1-210(b)(1), 1-210(b)(3), and 1-210(b)(10), G.S., exempt some of the requested records, and that the rules of the respondent require that the requested records “be maintained in executive session.”

 

10.   By letter dated and filed with the Commission on April 14, 2004, the complainant alleged that the respondent’s denial described in paragraph 9, above, violated the Freedom of Information (FOI) Act. 

 

            11.   At the hearing in this matter, the respondent did not advance the contentions described in paragraph 9, above, but rather asserted that House Bill 5545 should be given effect now or, in the alternative, the Commission should defer deciding this matter until sometime after April 20, 2004.

 

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

“[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 (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…."  

 

13.  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.” 

 

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

 

15.  It is also found that the respondent failed to prove that any exemption applies to the requested records.

 

16.  For the reasons stated in paragraph 6, above, and because the Commission is obliged to apply the law as it exists rather than what it may become, it is concluded that the respondent violated the FOI Act by denying the complainant a copy of the requested records. 

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 the requested records, as described in paragraph 8 of the findings, above.

 

           

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 20, 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:

 

Office of the Governor of Connecticut

c/o Ross Garber, Esq.

State Capitol

Room 212

Hartford, CT  06106

 

 

 

State of Connecticut, House of

Representatives, Select Committee

of Inquiry

c/o Susan Quinn Cobb, Esq.

Assistant Attorney General

55 Elm Street

Hartford, CT  06141

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2004-181/FD/mes/04/20/2004