FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 9, 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.  By letter of complaint filed February 15, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”)  Act by not complying with his request for public records. 

 

3.  It is found that the respondent, beginning in 2005, issued a Request for Proposals (“RFP”), number DOT-05-7001, for the repair of 33 passenger rail cars used on the Metro North New Haven Line.  

 

4.  It is found that the respondent received one proposal in response to the RFP, which he did not accept.  The RFP was then extended, and another proposal from the same entity was submitted and ultimately accepted.

 

5.  It is found that, by letter dated January 30, 2006, the complainant made the following request to the respondent:

 

I would like to formally request information regarding the recent Request for Proposals (RFP) issued for refurbishing of the 33 rail cars purchased from Virginia Railway Express.  This RFP (RFP No. DOT-05-7001) had an original deadline of December 29, 2005 but apparently was delayed until January 19, 2006.

 

I am interested in learning the number of bids received, the names of those bidders, and the dollar amounts of those bids.

 

6.  It is found that the respondent by letter dated February 3, 2006 indicated that he would provide the requested information only after the contract was awarded.

 

7.  It is found that the contract was awarded on or about March 3, 2006.

 

8.  It is found the respondent by letter dated March 16, 2006 provided to the complainant a copy of the “pricing structure” set forth in the proposal from Kawasaki Rail Car, Inc. (“Kawasaki”), the only entity submitting a proposal.  The respondent noted that neither Kawasaki’s proposal nor the contract with Kawasaki contained a fixed dollar amount, “since the cost of the contract will depend upon the amount of work required to refurbish each individual rail car which is as yet unknown.”

 

9.  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.

 

10.  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. 

 

11. Section 1-212(a), G.S., provides in relevant part, “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

12.  It is concluded that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  At the hearing, the respondent moved to dismiss the complaint on the grounds that the complainant was asking questions, and not requesting copies of public records.

 

14.  It is found that the respondent ultimately provided public records in response to the complainant’s request, and that those records contain the information sought by the complainant.  It is also found that, prior to the hearing on this matter, the respondent never claimed that the complainant’s request was not properly one for records.  It is further found that the full proposal submitted by Kawasaki is also a public record within the meaning of §§1-200(5) and 1-210(a), G.S., a record that would also have been responsive to the complainant’s request.

 

15.  It is therefore concluded that the complainant’s request is reasonably understood as a request for public records that contain the information that he sought from the respondent.

 

16.  The complainant acknowledges that the records provided in the respondent’s March 16, 2006 letter were responsive to his request, but contends that the records were not provided promptly.

 

17.  The respondent maintains that it believed that the records were exempt from disclosure until March of 2006, the date on which it concluded the request for proposal process.

 

18.  More specifically, the respondent maintains that the records were exempt from disclosure pursuant to §§1-210(b)(5)(B) and (7), G.S.

 

19.  Section 1-210(b)(5)(B), G.S. provides that disclosure is not required of “commercial or financial information given in confidence, not required by statute ….”

 

20.  Specifically, the respondent contends that the amount that Kawasaki proposed to charge for repair of the rail cars is “commercial or financial information given in confidence, not required by statute.”

 

21.  It is concluded, however, that the term “commercial or financial information given in confidence” refers to an entity’s proprietary commercial or financial information, not the amount of money it proposes to charge the state for the performance of a service contract.

 

22.  Further, the Commission notes that the provisions of §1-210(b)(5), G.S., are not temporally tied to the occurrence of an event, such as the awarding of a contract, and that the respondent’s assertion that the amount of the bid was exempt from disclosure under §1-210(b)(5), G.S., is inconsistent with his subsequent release of the information following the award of the contract to Kawasaki.  If the amount of the bid were the kind of proprietary commercial or financial information that §1-210(b)(5), G.S., is designed to protect, its status would not change once the contract was awarded. 

 

23.  It is therefore concluded that the amount of the Kawasaki bid is not exempt from disclosure pursuant to §1-210(b)(5), G.S.

 

24.  With respect to the respondent’s claim that the requested records were exempt pursuant to §1-210(b)(7), G.S., until the contract was awarded, that section provides that disclosure is not required of:

 

The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision.  [Emphasis added.]

 

25.  The respondent contends that the proposal contains “engineering or feasibility estimates and evaluations” within the meaning of §1-210(b)(7), G.S., because, under the proposal, Kawasaki would provide “engineering services” in the forms of drawings, tests and test procedures, and inspections of rail cars.

 

26.  It is found, however, that the mere reference to so-called “engineering services” within Kawasaki’s proposal does not convert the proposal itself into an engineering estimate or evaluation.

 

27.  In any event, it is also found that, even if the Kawasaki proposal contained “engineering estimates,” such estimates were not part of the information sought by the complainant, and that any such “engineering estimates” could have been redacted from the records provided to the complainant, who requested only the number of bidders, the names of the bidders, and the dollar amounts of the bids, none of which may reasonably be considered an “engineering estimate.”

 

28.  Additionally, it is found that the respondent failed to prove that the records he  claims were “engineering estimates” were in fact “relative to the acquisition of property or to prospective public supply and construction contracts,” within the meaning of §1-210(b)(7), G.S.  The Commission does not agree with the respondent’s contention that if an entity provides goods or services under contract to a public agency, the contract is necessarily a “public supply” contract.  Such a reading would render the words “public supply” meaningless, and convert all contracts with public agencies into “public supply” contracts.  Rather, the respondent’s contract with Kawasaki is simply a contract for repair services.

 

29.  It is concluded that the respondent violated §1-210(a), G.S., by delaying disclosure of the requested records until after the contract was awarded to Kawasaki.

 

30.  The complainant points out that the General Assembly, on at least three occasions, considered legislation that would make responses to requests for proposals exempt from disclosure under the FOI Act.  See S.B. No. 67 (2006) §23; S.B. No. 94 (2005) §22, P.A. 05-1; S.B. 2101 (2005) §23, P.A. 05-286.  While the enactment of any of these three bills would apparently have accomplished the result sought by the respondent, the first did not pass the General Assembly, and the last two were vetoed by the Governor.

 

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

 

            1.  The respondent shall henceforth strictly comply with requirements of §§1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 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:

 

Senator Robert Duff

50 Toilsome Avenue

Norwalk, CT 06851

and

c/o Joseph Quinn, Esq.

Senate Democrats

Legislative Office Building

Room 3300

300 Capitol Avenue

Hartford, CT 06106

 

Commissioner, State of Connecticut,

Department of Transportation

c/o Charles H. Walsh, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-056FD/paj/12/21/2006