FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 7, 2008, 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 September 23 or 24, 2007, the complainant orally requested a copy of a consultant’s report prepared for the respondent and discussed at a public meeting of a respondent’s Steering Committee on September 19, 2007.

 

3.      It is found that the respondent denied the complainant’s request for a copy of the records described in paragraph 2, above, because she claimed the report was exempt from disclosure under the Freedom of Information (“FOI”) Act as a preliminary draft.  In her post-hearing brief, the respondent claimed that the Steering Committee was not a public agency subject to the disclosure requirements of the FOI Act.

 

4.      It is found that by letter dated October 16, 2007 and filed October 17, 2007, the complainant appealed to this Commission, alleging that the respondent violated the FOI Act by failing to provide the copies of the records described in paragraph 2, above.

 

5.      Section 1-200(1), G.S., provides in relevant part:

 

‘Public agency’ or ‘agency’ means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official . . . .  (Emphasis added.)

 

6.      It is found that the respondent’s Steering Committee, which was created to administer a $50,000 federal grant to investigate and fund a master plan for the historic district of Old Wethersfield, worked with JMA Associates to prepare a study of Old Wethersfield and to make recommendations for the master plan for preservation.  It is found that JMA Associates were hired by the Wethersfield town council to consult with the committee and the respondent.

 

7.      It is found that the Steering Committee is a committee “created by” the respondent.  It is concluded, therefore, that the Steering Committee is a public agency, within the meaning of §1-200(1), G.S.

 

8.   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 receive a copy of such records in accordance with the provisions of section 1-212. 

 

9.      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 . . . .”

 

10.   It is found that the report is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11.   The respondent contends that the report is a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S., and is exempt from mandatory disclosure.

 

12.   Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require 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 . . . .”

 

13.  Section 1-210(e)(1), G.S., provides in relevant part that notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

 

[i]nteragency 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.

 

14.   In Shew v. Freedom of Information Commission, 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.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).

 

15.   It is found that on September 19, 2007, the Steering Committee held a properly noticed public meeting, at which JMA Associates presented a Power Point presentation.

 

16.   It is found that the Power Point presentation drew entirely from and summarized the report prepared by JMA Associates.  It is found that there is no significant difference between the information contained in the Power Point presentation and the report on which the presentation was based.

 

17.   It is found that the respondent distributed the JMA report discussed at the September 19, 2008 public meeting to the members of the Steering Committee in anticipation of the meeting.

 

18.   It is found that as the Power Point presentation proceeded, it became apparent to the public and to the Steering Committee that the presentation, and the JMA report on which the presentation was based, was full of errors and omissions.

 

19.   It is found that after the meeting concluded, the respondent and the Steering Committee concluded that the JMA report was so inaccurate that it needed substantial revision.  It is found that the respondent directed JMA Associates to fix the problems and return with a more satisfactory report.

 

20.    The respondent submitted the JMA report to this Commission for in camera inspection, which pages shall be number IC-2007-563-1 through IC-2007-563-108.

 

21.   It is found that the complainant requested the report on September 23 or 24, 2007, after the Power Point presentation on September 19, 2007. 

 

22.  It is found that the respondent has yet to receive a final report from JMA Associates.

 

23.   It is found that the respondent, as of the time of the September 19, 2007 meeting, considered the report to be sufficiently complete to share it with the Steering Committee and to use it as the basis for an informational public meeting.  It is further found that, at that time, the respondent also did not believe that it was in the public interest to withhold from the public the information contained in the report.

 

24.   It is found that the respondent adopted the position that the report was a preliminary draft and that the public interest favored withholding it only after a public meeting at which the respondent’s consultant disclosed the substance of the report, thereby revealing its inadequacies and errors.

 

25.   It is found that the report is not a preliminary draft or note, within the meaning of §1-210(b)(1), G.S., because the respondent disclosed its contents to the public, distributed the report to the Steering Committee, and injected the report into the committee’s decisional process.  

 

26.   It is concluded, therefore, that the respondent violated the FOI Act by failing to provide copies of the records described in paragraph 2, above.

 

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 JMA report, described in paragraphs 2 and 16 of the findings, above, free of charge.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 9, 2008.

 

________________________________

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:

 

Leigh Standish

280 Hartford Avenue

Wethersfield, CT 06109

           

Town Manager,

Town of Wethersfield

c/o John W. Bradley, Jr., Esq.

Rome McGuigan, PC

One State Street

Hartford, CT 06103

 

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-563FD/paj/4/14/2008