FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Judith G. Freedman, | |||
| Complainants | |||
| against | Docket #FIC 2005-575 | ||
|
State of Connecticut, General Assembly, Legislative Commissioners’ Office, |
|||
| Respondent | June 28, 2006 | ||
The above-captioned matter was heard as a contested case on February 2, 2006, 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. It is found that, on November 29, 2005, the complainant, a Connecticut state senator, made a request to the respondent for a copy of draft legislation related to campaign finance reform (hereinafter requested record).
3. It is found that attorneys, who upon request, assist legislators or legislative committees in drafting legislation, staff the respondent. It is found that legislators, not including the complainant, asked an attorney of the respondent to draft the requested record.
4. It is found that pursuant to the respondent’s long standing policy to treat draft legislation as attorney-client privileged communications, the complainant’s request was denied.
5. By letter dated November 29, 2005 and filed on November 30, 2005, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with her request.
6. 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 section 1-212.
7. Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
8. It is found that the requested record is a public record within the meaning of §1-210(a), G.S.
9. At the hearing on this matter and in its brief, the respondent argued that the Commission should not reach a decision on the merits of this case for the following reasons:
a. the complaint is moot because no practical relief may be granted to the complainant, particularly since she did not request the imposition of a civil penalty against the respondent; and
b. the Commission should exercise administrative restraint because there is no live controversy or other important consideration requiring a decision.
10. It is found that, while the complainant has not requested an imposition of a civil penalty herself, this Commission, upon finding a violation of the FOI Act, may, in its discretion, order the respondent to provide relief that it believes appropriate to rectify such violation, including the imposition of a civil penalty.
11. It is also found that as of the date of the hearing in this matter, the respondent has not provided the complainant with a copy of the requested record.
12. Consequently, for the reasons described in paragraphs 10 and 11 above, it is concluded that the complaint in this matter is not moot and the merits of the complaint will be addressed herein.
13. At the hearing in this matter and in its brief, the respondent also argued that the requested record is exempt from disclosure pursuant to §1-210(b)(1), G.S., and §§1-210(b)(10), and 52-146r, G.S.
14. Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “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.”
15. In Shew v. Freedom of Information Commission, 245 Conn. 149 (1989), the Supreme Court ruled 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 precede formal and informed decision making . . . . It is records of this preliminary, deliberative and predecisional process that. . . the exemption was meant to encompass.” Id at 165.
16. It is found that the requested record had not been circulated by the respondent and had not been used in any preliminary, deliberative and predecisional process of the respondent.
17. It is concluded that the requested record is a preliminary draft or note within the meaning of §1-210(b)(1), G.S.
18. It is found that the respondent determined that the public interest in withholding the requested record clearly outweighs the public interest in its disclosure, within the meaning of §1-210(b)(1), G.S.
19. At the hearing in this matter, the complainant argued that the respondent should have made a different determination with respect to the public interest because the circumstances were such that many legislators, including the complainant, were without the benefit of reviewing an official copy of the requested record with enough time to understand its full import before having vote on such legislation.
20. It is found that the respondent denied the complainant’s request after determining that the public interest in withholding draft bills clearly outweighs the public interest in their disclosure which determination is made, consistently, whenever a request for draft bills is received by the respondent, without respect to who made the request. Specifically, the respondent determined that a legislator’s ability to treat the respondent as “a laboratory of democracy in which he or she may work in confidence with the respondent’s staff to develop and evaluate policy and legislative ideas and determine which of those ideas should be publicly proposed to the General Assembly” would be compromised if draft bills were disclosed prematurely by the respondent. The respondent determined that the public would ultimately suffer because “the scope of legislative proposals offered in the General Assembly would likely narrow if such proposals could not first be aired and developed under the safety and confidentiality offered by the respondent.”
21. It is found that while this Commission does not find the respondent’s determination, described in paragraph 20, above, objectively persuasive, the respondent has seriously, and in good faith, considered the effect upon disclosure to the public of the requested record and this Commission cannot substitute its judgment for that of the respondent and make an independent determination in that regard. See Norstrand v. Freedom of Information Commission, 211 Conn. 339, 345.
22. Accordingly, it is concluded that the requested record is exempt from mandatory disclosure pursuant to §§1-210(b)(1), G.S., and that the respondent did not violate the FOI Act by denying the complainant access to such record, as alleged by the complainant.
23. Having concluded that the requested records are exempt from disclosure pursuant to §1-210(b)(1), G.S., and pursuant to the doctrine of administrative restraint, this Commission declines to address the respondent’s claim that the records are exempt from disclosure pursuant to §§1-210(b)(10) and 52-146r, G.S.
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 June 28, 2006.
________________________________
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:
State of Connecticut, General Assembly,
Legislative Commissioners’ Office
c/o Perry Zinn Rowthorn, Esq.
Assistant Attorney General
55 Elm Street
PO Box 120
Hartford, CT 06141-0120
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-575FD/paj/6/30/2006