FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 19, 2010, at which time the complainants 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 July 27, 2009, the complainants made a written request for a copy of the first draft submission by Spectrum Gaming to the respondents of the study “Gambling in Connecticut:  Analyzing the Economic and Social Impacts.”

 

3.      It is found that on August 7, 2009, the respondents denied the complainants’ request, claiming that §1-210(b)(1), G.S., exempted the draft report from mandatory disclosure.

 

4.      By letter received and filed on September 3, 2009, the complainants appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondents violated the FOI Act by failing to provide a copy of the requested records, described in paragraph 2, above.

 

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 record requested by the complainants is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      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.”

 

10.      The Supreme Court ruled in Shew v. Freedom of Information Commission, 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).

 

11.     It is found that the respondents authorized the Spectrum study that resulted in the draft report pursuant to §12-564(b), G.S., which provides in relevant part:

 

The executive director shall, with the advice and consent of the [Gaming Policy [B]oard, conduct studies concerning the effect of legalized gambling on the citizens of this state …

 

12.     It is found that the respondents formed a committee consisting of unit heads within the respondent Division to review the report submitted by Spectrum and to present the finished report to the Division.

 

13.     It is found that Spectrum presented its report to the respondent executive director on February 10, 2009.  It is found that this is the report requested by the complainants.

 

14.     It is found that the respondents’ committee reviewed the report and sent it back to Spectrum with 41 pages of corrections.

 

15.     It is found that the respondent committee accepted a subsequent report from Spectrum that incorporated the recommended changes.  It is found that the Division accepted and published the final report in June 2009.

 

16.     It is found that the draft that Spectrum provided to the executive director on February 10, 2009, as referenced in paragraph 13, above, was preliminary only in the sense that the respondents did not consider the draft to be final until they accepted it as such. 

 

17.     It is found, however, that, although the February 10, 2009 draft was subject to revision, that is not the test under Shew to determine whether a draft is preliminary.

 

18.     It is further found that the respondents’ consideration of the draft was part of the agency’s informed decision-making and deliberation.  Id. 

 

19.     It is found, therefore, that the February 10, 2009 report was not a preliminary draft within the meaning of §1-210(b)(1), G.S.

 

20.     Because it is found that the February 10, 2009 report was not a preliminary draft, it is not necessary to consider whether the respondents determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.

 

21.     Even if the February 10, 2009 report were a preliminary draft, §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.

 

22.     It is found that the February 10, 2009 draft report comprised part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S.

 

23.     It is found that the draft report submitted by Spectrum was not prepared by a member of the staff of a public agency.

 

24.     It is concluded, therefore, that disclosure is required of the records, described in paragraph 2, above, and the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to disclose such records.

 

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 2 of the findings of fact, free of charge.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 2010.

 

 

____________________________

S. Wilson

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:

 

Marvin A. Steinberg and the

Connecticut Council on Problem Gambling

C/o Daniel J. Klau, Esq.

Pepe & Hazard

225 Asylum Street

Hartford, CT 06103

Executive Director, State of Connecticut,

Division of Special Revenue; and

State of Connecticut, Division of Special Revenue

C/o Anne Stiber, Esq.

555 Russell Road

Newington, CT 06111

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

FIC/2009-515FD/sw/4/30/2010