Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by Final
Decision
Mark Errico,
Complainant
against Docket
#FIC 1995-340
Assistant Director, Marine Fisheries,
State of Connecticut, Department of
Environmental Protection,
Respondent July
24, 1996
The
above-captioned matter was heard as a contested case on February 27, 1996, at
which time 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 September 28, 1995, the complainant
requested that the respondent provide him with “the specific landings of total
bushels each harvest[er] reported to you individually of oysters and clams for
the years ending [1989-1994].”
3. By letter dated October 10, 1995, the
respondent denied the complainant’s request, claiming that the records
containing the requested information were exempt from disclosure pursuant to §26-157b, G.S.
4. By letter dated October 10 and filed October
13, 1995, the complainant appealed to the Commission alleging that the
respondent violated the Freedom of Information (“FOI”) Act by failing to comply
with his request.
5. It is found that commercial shellfish
harvesters are licensed and regulated by the department of agriculture, and
commercial fisherman and licensed and regulated by the department of
environmental protection.
Docket #FIC 1995-340 Page
2
6. It is found that pursuant to an inter-agency
agreement between the state departments of agriculture and environmental
protection, the respondent, who is statutorily required to maintain statistical
data on commercial fishermen, also solicits and collects data on landings of
oysters and clams from commercial shellfish harvesters annually in statistical
surveys (hereinafter “survey records”).
7. It is found that completion and submission
of the surveys by commercial shellfish harvesters is voluntary, and the
respondent’s cover letter attached to the surveys states that individual
information will be kept confidential and only aggregate data will be released.
8. It is found that the surveys submitted to
the respondent are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
9. The respondent claims that the survey
records are exempt from disclosure pursuant to §26-157b, G.S., which provides, in pertinent
part:
(a) Each person who holds a
commercial fishing license, license to take lobsters for personal use, license
to buy finfish, lobsters, crabs, sea scallops, squid or bait species for
resale, license to land lobsters, sea scallops, finfish, crabs or squid, purse
seine registration or pound net registration shall report to the commissioner
[of the department of environmental protection], at such intervals and at such
times as may be required and upon forms provided by the commission, such
information as the commissioner deems necessary. Such information may include but is not limited to: The number of
individuals employed by such person, the number and value of boats, nets,
apparatus and other devices used, the area fished, the effort expended and the
number, weight, market value and species of finfish, lobsters, sea scallops,
squid, or crabs caught, landed or purchased.
Each person who holds a party boat, head boat or charter boat registration
shall report to the commissioner, at such times and at such intervals as may be
required and upon forms provided by the commissioner, such information as the
commissioner deems necessary, which may include but is not limited to: The
number of individuals carried for the purpose of fishing, the area fished, the
effort expended, the number and weight by species of all finfish taken and, if
any of the catch is sold by such person or by the caption or crew of such
vessel, the number, weight, species and value of such finfish. …
Docket #FIC 1995-340 Page
3
(c) Notwithstanding any
provision of section 1-19 to the contrary, no person shall obtain, attempt to
obtain or release to any person or government agency any identifiable
individual record of or information derived from any report submitted in
accordance with the provisions of subsection (a) of this section or
submitted voluntarily upon request of the commissioner without the consent
of the person making the report, except that the commissioner may authorize the
release of such information for the purposes of fisheries research, management
and development and conservation law enforcement. Any person who violates the provisions of this section shall be
fined not more than one thousand dollars or imprisoned not more than thirty
days or both and each such violation shall constitute a separate offense. [Emphasis added.]
10. The complainant maintains that §26-157b, G.S., does not
apply to the requested survey records, because:
a) oysters and clams are not
referred to in §26-157b, G.S.;
b) the regulation of
shellfish harvesters is governed by Chapter 491 of the Connecticut General
Statutes, and the department of agriculture is the lead agency
on shellfish pursuant to §26-192a;
c) Chapter 490 of the
Connecticut General Statutes, which contains §26-157b,
applies only to fisheries and game; and
d) the respondent’s
interpretation of §26-157b, G.S., is overly
broad and would permit the department of environmental protection to withhold any
information voluntarily submitted to the agency, even if it in no way relates
to fisheries and
game.
11. It is concluded that §26-157b, G.S., does not
refer or apply to shellfish harvesting.
12. It is found that §26-157b, G.S., was amended
by Public Act 85-27 to add the language underlined in paragraph 9, above; and
the respondent claims that the amendment was intended to extend the exemption
for data submitted by commercial fishermen to data submitted by commercial
shellfish harvesters.
13. It is found, however, that nothing in the
amendment’s legislative history supports the respondent’s claim described in
paragraph 12, above.
Docket #FIC 1995-340 Page
4
14. It is therefore found that the respondent
failed to prove that §26-157b, G.S., provides an
exemption to disclosure of the requested survey records.
15. It is also found that the assurance of
confidentiality provided in the respondent’s cover letter to commercial
shellfish harvesters, described in paragraph 7, above, does not provide an
exemption to disclosure of the requested survey records.
16. It is therefore concluded that by failing to
provide the complainant with access to inspect or copy the requested survey
records, the respondent violated the provisions of §1-19(a), G.S.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. The respondent shall immediately provide the
complainant with access to inspect or copy the requested survey records.
2. Henceforth, the respondent shall strictly
comply with the provisions of §1-19(a), G.S.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
July 24, 1996.
__________________________
Doris
V. Luetjen
Acting Clerk of the Commission
fic1995-340/fd/mwp/07311996
Docket
# FIC 1995-340 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:
Mark Errico
c/0 Atty. Marci J. Silverman
Cohen and Wolf, P.C.
1115 Broad Street
Bridgeport, CT 06601
Assistant Director
Marine Fisheries,
State of Connecticut, Department of Environmental
Protection,
c/o Asst. Atty. Gen. Richard Webb
55 Elm Street
Hartford, CT 06106
__________________________
Doris
V. Luetjen
Acting Clerk of the Commission