FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Robert H. Boone and Journal Inquirer,

 

                                Complainants

 

                against                   Docket #FIC 94-383

 

South Windsor Economic Development Commission and South Windsor Town Council,

 

                                Respondents                        September 27, 1995

 

                The above-captioned matter was heard as a contested case on June 6, 1995, 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 1-18a(a), G.S.

 

                2.             By letter of complaint filed October 27, 1994, the complainants appealed to the Commission, alleging an improper executive session by the respondent economic development commission on October 17, 1994, and an improper executive session by the respondent town council on October 24, 1994.

 

                3.             In addition, the complainants alleged that the respondents improperly declined to identify the company that was discussed in the executive sessions.

 

                4.             It is found that the respondent economic development commission held a special meeting on October 17, 1994.

 

                5.             It is found that the economic development commission convened in executive session at its October 17, 1994 meeting for the stated purpose of discussing confidential financial information.

 

                6.             It is found that the actual purpose of the executive session was to discuss the granting of a tax abatement to a company, to induce it to remain in the town of South Windsor.

 

                7.             It is found that the notice of the October 17, 1994 meeting listed under the category "New Business" a motion to go into executive session and a motion to adjourn into executive

 

Docket #FIC 94-383                                             Page 2

 

session, but did not describe the tax abatement as business to be transacted, nor did it name company being considered for the abatement.

 

                8.             It is found that the minutes of the October 17, 1994 meeting state the basic terms of the abatement that was voted to be offered, but identify the recipient of the offer only as "Company C."

 

                9.             It is found that the respondent town council held a special meeting on October 24, 1994.

 

                10.           It is found that the town council convened in executive session at that meeting for the stated purpose of discussing confidential financial information.

 

                11.           It is found that the actual purpose of the October 24 executive session was to discuss and approve a resolution offering a tax abatement to the same company that the economic development commission had discussed at its October 17 meeting.

 

                12.           It is found that the notice of the October 24 meeting listed discussion of confidential financial information under the category "Executive Session", but did not describe the tax abatement as business to be transacted, nor did it name the company being considered for the abatement.

 

                13.           It is found that the minutes of the respondent town council's subsequent November 7, 1994 meeting recite the resolution authorizing the tax abatement, and name the company to which the abatement was offered, Rex Lumber.

 

                14.           The respondents maintain that the two executive sessions were permissible pursuant to 1-18a(e)(5) and 1-19(b)(5), G.S.

 

                15.           The respondents further maintain that they were not obligated to disclose the name of company that was to be the recipient of the tax abatement, since such disclosure would have prejudiced the negotiations to the advantage of other towns that might compete for Rex Lumber.

 

                16.           Additionally, the respondents maintain that all companies negotiating for benefits such as tax abatements expect their identities to remain confidential, and that for the town to reveal their identifies would undermine the integrity of the negotiation process.

 

                17.           Finally, the respondents maintain that the process of negotiating tax abatements is difficult, sensitive and complex, and that confidentiality is extremely important to virtually every company seeking such a benefit.

 

Docket #FIC 94-383                                             Page 3

 

                18.           Section 1-18a(e)(5), G.S., provides that a public agency may convene in executive session for:

 

                discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.

 

                19.           Section 1-19(b)(5), G.S., in turn provides that disclosure is not required of records of "commercial or financial information given in confidence, not required by statute."

 

                20.           The respondents maintain that the two executive session were devoted to discussion of confidential commercial or financial information.

 

                21.           Specifically, the respondents argue that they did not wish the financing package involved in keeping the company in South Windsor to be publicized.

 

                22.           It is found, however, that the respondents failed to prove that any actual confidential commercial or financial records, or the information contained in them, were discussed in either of the executive sessions.

 

                23.           It is therefore found that the respondents failed to prove that the matters discussed in their executive session would have resulted in the disclosure of exempt public records, or the information contained in them, within the meaning of 1-18a(e)(5), G.S.

 

                24.           It is therefore concluded that the respondents violated 1-21(a) and 1-18a(e), G.S., by convening in executive sessions for an improper purpose.

 

                25.           With respect to the omission of Rex Lumber's name from the agendas of either meeting, or the minutes of the October 17, 1994 meeting, the respondents maintain that the name of the company was so closely tied to the details of the financing and business plan, that to disclose the company's name would be to disclose confidential financial and business information.

 

                26.           It is found, however, that the respondents' claim that purportedly confidential information could not be kept separate from the company's name to be simply not credible, and notes that no such breach of financial confidences appears to have occurred as a result of ultimately naming Rex Lumber as the recipient of a tax abatement.

 

Docket #FIC 94-383                                             Page 4

 

                27.           Section 1-21(a), G.S., provides with respect to special meetings that the agency's notice shall specify the business to be transacted.

 

                28.           It is found that the notice of the respondent economic development commission's October 17, 1994 meeting, which describes neither the issue of the tax abatement, nor the beneficiary, fails to adequately describe the business to be transacted.

 

                29.           It is also found that the notice of the respondent town council's October 24, 1994 meeting, which also describes neither the issue of the tax abatement, nor the beneficiary, similarly fails to adequately describe the business to be transacted.

 

                30.           It is therefore concluded that both respondents violated 1-21(a), G.S., by failing to describe the business to be transacted at their October 17 and October 24, 1994 meetings.

 

                31.           Section 1-21(a), G.S., provides in relevant part:

 

                                The votes of each member of any ... public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken ....

 

                32.           It is found that the minutes of the respondent economic development commission's October 17, 1994 meeting describe a vote to adopt a motion to offer a tax abatement to an entity described only as "Company C."

 

                33.           It is found that the recording of a vote that proposes a tax abatement while omitting the name of the recipient deprives the public of its ability intelligently to assess whether the respondent economic development commission is doing its work properly.  Rose v. FOIC, 221 Conn. 217, 235 (1992).

 

                34.           It is concluded that the respondent economic development commission violated the record of vote requirements of 1-21(a), G.S., by deliberately omitting from its minutes the name of the company that was the actual subject of the respondent's motion and vote.

 

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

 

Docket #FIC 94-383                                             Page 5

 

                1.             Henceforth the respondents shall strictly comply with the requirements of 1-18a(e)(5) and 1-21(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 27, 1995.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 94-383                                             Page 6

 

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:

Robert H. Boone

  and Journal Inquirer

306 Progress Drive

P.O. Box 510

Manchester, CT 06045-0510

 

South Windsor Economic Development Commission and South Windsor Town Council

c/o Ralph J. Alexander, Esq.

Brady, Willard & Alexander

330 Roberts St., Suite 400

East Hartford, CT 06108-3604

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission