FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 7, 2010, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      On September 28, 2009, the complainant made a written request for copies of records pertaining to the water and sewer usage of the complainant business at 725 Bank St., Waterbury.

 

3.      By letter received and filed on October 7, 2009, the complainant appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondents violated the FOI Act by failing to provide copies of the requested records.

 

4.      By the date of the hearing in this matter, the respondents had provided all the copies of records that the complainant requested, except for “[t]he Tighe & Bond Report into water and/or sewer usage (hereinafter “the report”).

 

5.      Section 1-200(5), G.S., defines “public records” as follows:

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

6.      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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

7.      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.”

 

8.      It is concluded that the report requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that the report is a sewer user fee adjustment evaluation performed by Tighe & Bond, Inc. for the respondent city.  It is found that Tighe & Bond studied six City of Waterbury water/sewer customers, none of which are residential.  It is found that the evaluation relied on information received from each customer and site inspections by Tighe & Bond.  It is found that the City sought an unbiased evaluation of the customers’ sewage use.

 

10.   The respondents claim the report is exempt from disclosure.  Following the hearing, the respondents submitted an unredacted copy of the draft report and the final report, including tables and figures, for in camera review, which pages shall be identified herein as IC-2009-592-1 through IC-2009-592-176.

 

11.    The respondents claim that §1-210(b)(1), G.S., exempts from disclosure IC-2009-592-1 through IC-2009-592-24 and IC-2009-592-162 through IC-2009-592-176, which the respondents describe as draft reports and draft tables. 

 

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... (Emphasis added.)”

 

13.    “Exemption under [§1-210((b)(1),G.S.,] entails a two-pronged analysis. First, it must be determined whether the subject document qualifies as a ‘preliminary draft or note.’  If so, the second prong involves the determination by the public agency … ‘that the public interest in withholding such document clearly outweighs the public interest in disclosure.’  Board of Trustees for Community-Technical Colleges v. FOI Comm’n, 1992 Conn. Super. LEXIS 1852, *9.

 

14.    It is found that the respondents failed to prove that the respondents determined that the public interest in withholding the records described in paragraph 11, above, clearly outweighs the public interest in disclosure.  “It is axiomatic that the burden of proving the applicability of any exemption in the act rests with the party claiming the exemption.”  Dir., Dep't of Info. Tech. v. FOI Comm'n, 274 Conn. 179, 189 (2005).

 

15.    It is concluded, therefore, that the respondents may not rely on §1-210(b)(1), G.S., to withhold IC-2009-592-1 through IC-2009-592-24 and IC-2009-592-162 through IC-2009-592-176 from disclosure. 

 

16.   The respondents contend that §1-210(b)(4), G.S., exempts from disclosure the draft report and the final report of the water and sewer evaluation of the complainant; i.e., IC-2009-592-20 through IC-2009-592-35. 

 

17.   Section 1-210(b)(4), G.S., provides that disclosure is not required of “[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled[.]” 

 

18.   Sections 1-200(8) and 1-200(9), G.S., set forth the following definitions:

 

(8) “Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

(9) “Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

19.    The respondents contend that IC-2009-592-20 through IC-2009-592-35 pertain to a pending claim.

  

20.     It is found that the complainant and the respondents have been engaged in a long-running dispute over the complainant’s sewer usage bill. It is found, however, that the parties have communicated frequently in an effort to settle the dispute. 

 

21.     It is found that the complainant has not filed a written notice to the respondents setting forth a demand for legal relief, nor has the complainant stated its intent to institute a legal action if the respondents do not lower the complainant’s sewer bill.  It is further found that the respondents have not shown that they have considered action to enforce any legal rights. 

 

22.     It is found that the Tighe & Bond records pertaining to the complainant do not pertain to a pending claim, within the meaning of §1-210(b)(4), G.S. 

 

23.    It is concluded that §1-210(b)(4), G.S., does not exempt the records described in paragraph 16, above, from mandatory disclosure.

 

24.     The respondents also claim that many of the records are exempt pursuant to §1-210(b)(5)(A), G.S., which permits an agency to withhold from disclosure:

 

(t)rade secrets, which for purposes of the [FOI] Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy.

 

25.     Upon careful examination of the in camera records, it is found that the records identified in the In Camera Index as containing trade secrets pertain to water use and sewage discharge of each of the six businesses evaluated by Tighe & Bond.  It is found that the records describe each customer’s operations and processes only in general terms, and only with respect to their water and sewer use.  It is found that there is no evidence that such processes are trade secrets within the meaning of §1-210(b)(5), G.S.

 

26.    It is concluded that the respondents may not rely on §1-210(b)(5)(A), G.S., to withhold from disclosure the records described in paragraph 25, above.

 

27.    The respondents contend that §1-210(b)(7), G.S., exempts many of the in camera records from disclosure.  Section 1-210(b)(7), G.S., 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.)

 

28.     The respondents claim that the Tighe & Bond report is six engineering evaluations relative to prospective public supply contracts.

 

29.      It is concluded, however, that a public supply contract is a written contract involving the purchase or lease and rental of products between a supplier and a public authority.  It is concluded that in a public supply contract, the public authority acquires the supplier’s products. 

 

30.     It is found that in the context of this case, the six businesses that are the subject of the Tighe & Bond evaluations are customers of the city’s sewer services, not suppliers of products to the city.

 

31.     It is found that the supply of water and sewer services to the six customers evaluated by Tighe & Bond … “constitute a private as opposed to the ‘public supply’ contract referenced in [1-210(b)(7), G.S.]”  D. Pub. Utilities v. FOI Comm’n, 1998 Conn. Super. LEXIS 1571, * 8 (supply of gas to the Mashantucket Tribe is a private, not a public supply contract).

 

32.     It is concluded that the records described in paragraph 28, above, are not exempt from disclosure pursuant to §1-210(b)(7), G.S.

 

33.    Accordingly, it is concluded that the records described in paragraph 4, above, are not exempt from disclosure pursuant §1-210(b), G.S.  It is further concluded that the respondents violated the FOI Act by failing to disclose such records to the complainant.

 

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

 

1.    Forthwith, the respondents shall provide copies of the records described in paragraph 4 of the findings of fact, free of charge.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

 

____________________________

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:

 

Ansonia Copper & Brass, Inc.

c/o Thomas M. Armstrong, Esq.

Reid and Riege, P.C.

One Financial Plaza

Hartford, CT 06103

 

Freedom of Information Officer,

City of Waterbury; and

City of Waterbury

c/o Kevin J. Daly, Jr., Esq.

Corporation Counsel’s Office

26 Kendrick Avenue, 8^th Floor

Waterbury, CT 06702

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-592FD/paj/4/19/2010