Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by Final
Decision
Jon Lender and The Hartford Courant,
Complainants
against Docket
#FIC 1995-348
Commissioner, State of Connecticut,
Department of Public Works, and Public
Affairs Officer, State of Connecticut,
Department of Public Works,
Respondents September
11, 1996
The
above-captioned matter was heard as a contested case on February 28, 1996, 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 dated November 17, 1995, the complainants requested
that the respondents provide them with access to all files concerning the
proposed Waterbury courthouse project then under consideration by the state
Department of Public Works (hereinafter “DPW”) as well as files relating to an
abandoned prior selection process for the same project, including, but not
limited to: letters of inquiry; requests for proposals; responses to requests
for proposals; any internal memoranda, correspondence or reports by any state
agency, company or other individual concerning the project; evaluation reports,
lists of questions about the project; and any communications with proponents,
architects, engineers and any other parties concerning the project.
3.
By facsimile transmittal cover sheet and attachments dated November 27,
1995, the respondents denied the complainants’ request, claiming that
“negotiations are exempt from the Freedom of Information (“FOI”) Act”, and that
§4b-23, G.S., exempts the
requested records from disclosure.
4.
By letter dated November 27 and filed November 28, 1995, the
complainants appealed to the Commission alleging that the respondents violated
the FOI Act by failing to provide them with access to the requested records.
5.
It is found that on June 24, 1993, DPW issued a request for proposals
(hereinafter “1993 RFP”) for a project to design and build a new criminal
courthouse in Waterbury.
6.
It is found that three developers submitted proposals in response to the
1993 RFP, and that a DPW proposal review team evaluated the proposals and made
a recommendation to then DPW Commissioner Morris on which proposal to select.
7.
It is found that Commissioner Morris selected a developer to commence
negotiations with in August 1994; but in February 1995, before a contract was
signed with the selected developer, his successor, Commissioner Anson, decided
to abandon the 1993 RFP, issue a new RFP and begin the selection process again.
8.
It is found that the second RFP was issued on March 23, 1995
(hereinafter “1995 RFP”), and that three developers submitted proposals, two of
which had submitted proposals in response to the 1993 RFP.
9. It is
further found that in March 1995, the respondents returned the bulk of the 1993
RFP records to the developers who had submitted them and that the respondents
did not retain copies of such records.
10. The
respondents submitted copies of the requested records which it currently
maintains relating to both the 1993 and 1995 RFPs for an in camera
inspection.
11. It is
found that the records responsive to the complainant’s request consist of two
boxes of records, including, but not limited to: DPW’s 1993 and 1995 RFPs; portions of the 1993 RFP responses and
most of the 1995 RFP responses, including descriptions of the development
companies and their company histories, specific design plans and cost
projections; the proposal review team’s evaluations of the proposals submitted
in response to both RFPs; correspondence; lists of questions to DPW from
proposers and DPW’s responses; draft agreements and other related records. The bulk of the submitted records have been
identified by the respondent as in camera documents #1995-348:1-15, each
with multiple sub-parts; however, some of the records which are not claimed to
be exempt from disclosure are neither indexed nor identified by the
respondents.
12.
Section 1-18a(d), G.S., provides that:
“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.
[Emphasis added.]
13.
Section 1-19(a), G.S., provides, in pertinent part:
Except as otherwise provided by any federal law or
state statute, all records maintained or kept on file by any public agency …
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 1-15.
14. It is
found that the records maintained by the respondents concerning the subject
1993 and 1995 RFPs are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.
15. The
respondents do not claim any exemption to disclosure for in camera
documents #1995-348: 1, 2, 3 and 8, and for certain other unindexed records
that are scattered throughout the in camera records.
16. It is
found that the respondents failed to provide the complainants with any of the
requested records identified in paragraph 15, above, and consequently violated §1-19(a), G.S., in this
respect without reasonable grounds.
17. The
respondents maintain that all indexed records contained in in camera
documents #1995-348:4-7 and 9-15 are exempt from disclosure until a contract is
executed with the selected developer pursuant to §§1-19(b)(5) and (7), G.S.
18. In
camera documents #1995-348:4-7 and 9-15, are identified on the in camera
index by the respondents as follows:
(4)
documents related to evaluation of the proposals received in response to
the 1993 RFP, with 68 sub-parts;
(5)
documents related to the selection of a proposal (1993 RFP) by the
Commissioner at DPW, with 16 sub-parts;
(6)
documents related to negotiations with Atlas/Waterbury on 1993 RFP
between September 20, 1994 and February 1995, with 45
sub-parts;
(7)
documents related to the decision to re-advertise for proposals, with 6
sub-parts;
(9)
documents related to events between the issuance of the 1995 RFP and
the receipt of proposals;
(10) proposals received in
response to the 1995 RFP, with 9 sub-parts;
(11)
documents related to the evaluation of proposals received in response
to the 1995 RFP, with 14 sub-parts;
(12)
documents related to the selection of a developer by the Commissioner
of DPW (1995 RFP);
(13) documents related to negotiations with Northland,
with 35 sub-parts;
(14) appraisals on Northland properties, with 2
sub-parts; and
(15)
documents relating to the Bond Commission request, with 2 sub-parts.
19. Section
1-19(b)(5), G.S., permits the nondisclosure of:
trade secrets, which for purposes of [the FOI Act]
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 recognized by law
as confidential, and commercial or financial information given in
confidence, not required by statute.
[Emphasis added.]
20.
Section 1-19(b)(7), G.S., permits the nondisclosure 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 terminated or abandoned,
provided the law of eminent domain shall not be affected by this
provision. [Emphasis added.]
21. It is
found that §1-19(b)(5), G.S., is not a
temporal exemption, therefore whether a contract has been executed is not
relevant to the consideration of the application of that provision.
22. It is
further found that the respondents failed to prove that the requested records,
or any portions of them, contain trade secrets as defined in §1-19(b)(5), G.S., or that
they contain information recognized by law as confidential.
23. It is
further found that only the proposals submitted by Northland Development
Corporation (hereinafter “Northland”), which responded to both RFPs and was
ultimately selected by DPW to pursue negotiations with, contain statements that
the proposals were submitted in confidence.
Consequently, the records submitted in response to the RFP by the other
companies do not fall within the §1-19(b)(5), G.S. exemption.
24. It is
further found that, without more, the statements of confidentiality contained
in Northland’s proposals do not provide an exemption to the disclosure of
public records.
25. It is
further found that although Northland’s annual report is referred to as
attached to its proposal, which conceivably could contain financial information
pertaining to Northland, it is not among the in camera documents
submitted to the Commission, and therefore the Commission infers that it does
not meet the claim of exemption.
26. It is
found that the respondents failed to prove that the information contained in
the in camera records pertaining to Northland constitutes commercial or
financial information within the meaning of §1-19(b)(5), G.S.
27. It is
therefore concluded that the respondents failed to prove that any of the
requested records were exempt from disclosure under §1-19(b)(5), G.S.
28.
It is found that the respondents failed to prove that any of the records
submitted for in camera inspection are engineering or feasibility
estimates or evaluations made for or by an agency relative to the acquisition
of property or to prospective public supply and construction contracts within
the meaning of §1-19(b)(7), G.S.
29. Further,
even if records of the 1993 RFP process constitute engineering or feasibility
estimates or evaluations, it is concluded that §1-19(b)(7), G.S., would not apply to such
records because the 1993 RFP process has been abandoned.
30.
It is found that in camera documents #1995-348-13(15), 14(1) and
14(2), pertaining to the 1995 RFP, are real estate appraisals prepared for DPW
relative to the acquisition of property and a prospective public construction
contract. Consequently, it is concluded
that such records are exempt from disclosure pursuant to §1-19(b)(7), G.S., at this
time.
31. At the
hearing on this matter, the respondents made no claim of exemption based upon §4b-23, G.S.; however, the
respondents claimed that, as a matter of public policy, the requested records
should not be disclosed prior to the execution of a contract, because it would
nullify DPW’s ability to comply with §4b-24(4), G.S., which
authorizes the commissioner of DPW to enter into a contract based upon
competitive proposals.
32. It is
concluded that the respondents’ policy argument described in paragraph 31,
above, neither states an exemption to the disclosure requirements of the FOI
Act, nor would it make proposals submitted in response to an RFP less
competitive.
33. It is
concluded that by failing to provide the complainants with prompt access to
inspect or copy all of the requested records, with the exception of the exempt
records identified in paragraph 30, above, the respondents violated §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 respondents shall forthwith provide the
complainants with access to inspect or copy all of the requested records, with
the exception of the records identified in paragraph 30 of the findings, above,
free of charge.
2. Henceforth, the respondents shall strictly
comply with the requirements of §1-19(a), G.S.
3. With respect to the records identified in
paragraph 9 of the findings, above, the Commission advises the respondents to
consult the state Public Records Administrator to ensure their compliance with
state statutes and schedules pertaining to the retention and destruction of
public records.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September 11, 1996.
__________________________
Elizabeth
A. Leifert
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:
Jon
Lender and The Hartford Courant
285
Broad Street
Hartford,
CT 06115
Commissioner, State of Connecticut, Department of
Public Works, and Public Affairs Officer, State of Connecticut, Department of
Public Works,
c/o Jose O. Salinas, Esq.
Assistant Attorney General
P.O. Box 120
Hartford, CT 06141-0120
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission