FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Ace Ambulance Service, Inc.
Complainant
against Docket
#FIC 95-159
Mayor of Stamford,
Respondent February 14, 1996
The above-captioned matter was heard as a contested
case on November 9, 1995 and November 22, 1995, at which times 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 1-18a(a), G.S.
2. By letter
dated April 21, 1995, the complainant, by and through its attorney, Jeffrey J.
Mirman, requested of the respondent a copy of a business proposal which was
submitted to him by Mr. Rick Miller of Stamford Emergency Medical Services,
Inc. (hereinafter "SEMS")
3. Having
failed to receive the requested record, the complainant, by letter dated May
11, 1995 and filed on May 12, 1995, appealed to the Commission alleging that
the respondent violated the Freedom of Information ("FOI") Act by
denying it a copy of the requested record.
4. The
respondent claims that SEMS is not a public agency or the functional equivalent
of a public agency under the FOI Act and that the subject record is not a
public record within the meaning of 1-18a(d), G.S.
5. The
respondent also contends that the subject record is not a public record because
he did not treat it as a public record and because he no longer has possession
of the proposal, having returned it to his executive aide for retention in her
personal files.
Docket #FIC 95-159 Page
2
6. It is
found that whether or not SEMS is a public agency for purposes of the FOI Act
is not at issue in this matter.
Therefore, the Commission need not consider the respondent's arguments
with respect thereto.
7. Section
1-18a(d), G.S. provides, in relevant part:
(d)
"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...." [Emphasis added.]
8. It is
found that the subject record is a business proposal by SEMS, proposing a
for-profit subsidiary that would provide non-emergency transport services for
Stamford residents.
9. It is also
found that the subject record was received by the respondent from the
respondent's executive aide, who serves as the respondent's nominee on SEMS'
board of directors.
10. It is
further found that the subject record was provided to the respondent at the
request of SEMS for the express purpose of obtaining the respondent's support
for the proposal in his capacity as a public agency.
11. It is
further found that the respondent did in fact write a letter in his capacity as
the chief elected official of the City of Stamford to SEMS' president in
support of the proposal.
12. It is
therefore found that the subject record is a public record within the meaning
of 1-18a(d), G.S.
13. The
respondent has submitted the subject record for an in camera inspection by the
Commission. Therefore, his contention
that he does not have the subject record is no longer accurate.
14. The
respondent claims that the portion of the subject record that does not
constitute the application to the Connecticut Department of Health and
Addiction Services, Office of Emergency Medical Services, is exempt from
disclosure by virtue of both 1-19(b)(1), G.S., because it is a preliminary
draft, and 1-19(b)(5), G.S., because it contains trade secrets and
confidential financial information.
15. It is
concluded that by failing to provide the complainant with the application
portion of the subject record, the respondent violated the provisions of
1-15(a) and 1-19(a), G.S.
Docket #FIC 95-159 Page
3
16. Section
1-19(b)(1), G.S., permits the nondisclosure 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."
17. Section
1-19(b)(5), G.S., permits the nondisclosure of:
"trade secrets, which . . . are
defined as unpatented, secret, commercially valuable plans, appliances,
formulas, or processes, which are used for the making, preparing, compounding,
treating or processing of articles or materials which are trade commodities
obtained from a person and which are recognized by law as confidential, and
commercial or financial information given in confidence, not required by
statute." [Emphasis added.]
18. It is
found that the subject record is not a preliminary draft of the respondent;
rather it is a company's business proposal that was submitted to the
respondent, in his capacity as a public agency, to solicit his support for the
proposal.
19.
Consequently, it is concluded that 1-19(b)(1), G.S., is inapplicable to the subject record.
20. It is
found that the subject record does not contain any trade secrets, as defined in
1-19(b)(5), G.S.
21. It is
further found, based upon the uncontroverted evidence, that the subject record
was not given to the respondent in confidence.
22.
Consequently, it is concluded that 1-19(b)(5), G.S., is inapplicable to the subject record under
the facts of this case.
23. It is
therefore found that the non-application portion of the subject record is also
not exempt from disclosure under either 1-19(b)(1) or 1-19(b)(5).
24.
Consequently, it is concluded that the respondent violated the
provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the
complainant with a copy of the requested record, in its entirety.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned complaint:
Docket #FIC 95-159 Page
4
1. The
respondent shall forthwith provide the complainant with a copy of the subject
record, as described in paragraph 7 of the findings, above, in its entirety.
Approved by Order of the
Freedom of Information Commission at its regular meeting of February 14, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-159 Page
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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:
Ace Ambulance Service, Inc.
c/o Jeffrey J. Mirman, Esq.
Levy & Droney, P.C.
P.O. Box 887
Farmington, CT 06034-0887
Mayor of Stamford
c/o Barry Boodman, Esq.
888 Washington Bvld.
P.O. Box 10152
Stamford, CT 06904-2152
Elizabeth A. Leifert
Acting Clerk of the Commission