FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

George L. Holmes, Jr.,

 

                                Complainant

 

                against                   Docket #FIC 95-147

 

Fairfield First Selectman,

 

                                Respondent                          March 27, 1996

 

                The above-captioned matter was heard as a contested case on November 13, 1995, at which time the complainant and the respondent appeared, 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.             It is found that the town of Fairfield ("town") solicited bids ("proposals") from entities interested in leasing the town's land for the purpose of constructing and operating an ice skating facility ("facility").

 

                3.             It is found that the proposals were solicited in writing in the form of a "Request for Proposal" ("RFP").

 

                4.             It is found that three proposals were received by the town in response to its RFP.

 

                5.             It is found that by letter dated April 25, 1995, the complainant requested from the respondent copies of the three proposals received by the town.

 

                6.             It is found that by reply letter dated April 26, 1995, the respondent informed the complainant that only one of the proposals--the rejected bid--would be provided to him because "[a]s a public policy issue, proposals which are, or may be, involved in further negotiations should not be made public until finalized."

 

Docket #FIC 95-147                                             Page 2

 

                7.             By letter of complaint dated April 28, 1995, and filed with this Commission on May 1, 1995, the complainant appealed the respondent's failure to fully comply with his request for the proposals.

 

                8.             It is found that the proposals are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                9.             The respondent first claims that the proposals are exempt from disclosure as "preliminary drafts or notes" within the meaning of 1-19(b)(1), G.S.

 

                10.           It is found that the proposals do not constitute preliminary drafts of bids, within the meaning of 1-19(b)(1), G.S., because they are not preliminary drafts of the respondent, rather, they are the very bids submitted to the respondent in response to its RFP.

 

                11.           It is also found that the proposals are not exempt from disclosure under 1-19(b)(1), G.S., because they constitute reports comprising part of the process by which governmental decisions are made, within the meaning of 1-19(c)(1), G.S.

 

                12.           It is therefore concluded that the respondent failed to prove that the proposals are exempt from disclosure under 1-19(b)(1), G.S.

 

                13.           The respondent next contends that the proposals constitute "commercial or financial information given in confidence, not required by law" within the meaning of 1-19(b)(5), G.S.

 

                14.           It is found that the RFP sought commercial and financial information, in addition to information about prior experience in developing and operating such a facility from those submitting proposals.  Therefore, the proposals constitute "commercial or financial information" within the meaning of 1-19(b)(5), G.S. 

 

                15.           It is found that the RFP from the town concerning the facility sought "sealed responses" from prospective bidders.

 

                16.           The respondent failed to prove, however, that the proposals at issue were in fact given to the town in confidence by the submitters.  Indeed, the respondent agreed to provide the complainant with a copy of the rejected proposal on April 26, 1995, and disclosed copies of all three proposals on or about June 1, 1995, thereby demonstrating that the commercial or financial information contained in the proposals was not given in confidence.

 

Docket #FIC 95-147                                             Page 3

 

                17.           It is therefore concluded that the respondent failed to prove that the proposals constitute "commercial or financial information given in confidence" within the meaning of 1-19(b)(5), G.S.

 

                18.           The respondent further claims that the proposals are exempt from disclosure because they constitute "real estate appraisals, engineering or feasibility estimates or evaluations," within the meaning of 1-19(b)(7), G.S.

 

                19.           Section 1-19(b)(7), G.S., in relevant part states 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 abandoned ....

 

                20.           It is found that the documents at issue are simply bid proposals submitted in response to an invitation to bid from the respondent in the form of an RFP and consequently it is concluded that the proposals do not fit within the meaning of the exemption contained in 1-19(b)(7), G.S.

 

                21.           It is therefore concluded that the respondent violated 1-15 and 1-19(a), G.S., by failing to promptly provide the complainant with a copy of each of the proposals submitted.

 

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

 

                1.             Henceforth the respondent shall fully comply with the disclosure provisions of 1-15 and 1-19(a), G.S.

 

                2.             The Commission notes that the respondent's suggestion that as a matter of "public policy" such proposals should not be disclosed publicly until negotiations are finalized, is contrary to the policy of open, accountable government that Connecticut's Freedom of Information ("FOI") Act was enacted to establish and protect.  In this case where there was absolutely no evidence that disclosure of the proposals would have adversely affected

 

Docket #FIC 95-147                                             Page 3

 

any proceeding or transaction, the respondent's decision not to disclose the proposals upon request was indeed violative of the letter and intent of the FOI Act, and helped to foster public distrust of the town's RFP process concerning the facility.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 27, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-147                                             Page 5

 

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:

George L. Holmes, Jr.

McNamara and Kenney

75 Kings Highway Cutoff

Fairfield, CT 06430

 

Fairfield First Selectman

c/o Michael P. A. Williams, Esq.

2507 Post Road

Southport, CT 06490-1259

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission