FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Town of Newtown,

Complainant

against Docket #FIC 87-392

Office of the Governor of the State of Connecticut and Legal Counsel for the Office of the Governor of the State of Connecticut,

Respondents June 22, 1988

The above-captioned matter was heard as a contested case on February 8, 1988, at which time the respondents appeared but the complainant failed to appear. Upon motion of the respondents, the hearing officer recommended dismissal of the complaint for failure to prosecute. On March 9, 1988 the Commission declined to adopt the report of hearing officer and voted to re-open the matter. The matter was again heard as a contested case on April 28, 1988, at which time the complainant 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:

1. The respondents are public agencies within the meaning of §1-18a(a), G.S.

2. On or about July 31, 1987 the Commissioner of the State of Connecticut Department of Public Works ("commissioner of public works") chose the Town of Newtown as the site of a proposed Western Region Correction Center ("the jail").

3. One of the resources available to the commissioner of public works in making his decision was a report prepared by Antinozzi Associates ("the Antinozzi report") which concluded that the Town of Newtown was the best available location for the proposed jail.

4. A review of the Antinozzi report revealed several errors, such as the failure to accurately state the acreage of the proposed site and the failure to identify the location of the nearest state police barracks.

Docket #FIC 87-392 Page Two

5. In an August 27, 1987 critique, Dr. H. Rudy Ramsey concluded that the study method used in the Antinozzi report produced a "highly unreliable" result.

6. In late August, 1987 Jack Rosenthal, then first selectman of the complainant, appealed to Governor O'Neill, pursuant to §3-1, G.S., concerning the selection of Newtown as the jail site. Mr. Rosenthal cited the alleged flaws in the Antinozzi report and asked the governor to investigate.

7. Section 3-1, G.S. provides the governor with the power to "demand in writing from any officer, department, board, commission, council or other agency of the state a report on any matter relating to the official duties of such agency."

8. The governor asked the respondent counsel to review the issues raised, including allegations that flaws in the Antinozzi report made it an unreliable resource.

9. In connection with his review of the complainant's allegations, the respondent counsel solicited comments from, among others, William H. Carbone, of the State of Connecticut Office of Policy and Management. Mr. Carbone replied to the respondent counsel's inquiry by letter dated September 17, 1987.

10. In a September 18, 1987 letter the respondent counsel asked Mr. Rosenthal to provide him with a list of errors, inaccuracies or omissions in the Antinozzi report.

11. In a September 29, 1987 letter to the respondent counsel, Mr. Rosenthal cited Dr. Ramsey's report.

12. By letter dated October 21, 1987 Mr. Carbone again corresponded with the respondent counsel concerning the selection of Newtown as a jail site.

13. On November 20, 1987 counsel for the complainant, Charles Campbell, met with the respondent for approximately one hour. The meeting included a presentation by a Newtown citizens' group. During such meeting Attorney Campbell, on behalf of the complainant, made an oral request of the respondent counsel for copies of the comments on the critiques of the Antinozzi report and any other report pertaining to the selection of the Town of Newtown as a jail site.

14. In response to Attorney Campbell's oral request, the respondent counsel requested that he submit a written request, specifically identifying the requested records.

Docket #FIC 87-392 Page Three

15. By letter dated November 23, 1987 Attorney Campbell made a written request of the respondent for Mr. Carbone's comments on the Antinozzi report and for any other comments, corrections, recommendations or information which might have a bearing on the governor's review of the decision to build a jail in Newtown.

16. Attorney Campbell's request was delivered to the respondents after business hours on November 23, 1987.

17. In a December 4, 1987 letter the respondent counsel reported to Governor O'Neill his conclusion that the Antinozzi report was "reasonable, objective, and totally supportable based on available data," that the decision by the commissioner of public works was sustainable and that the proposed jail construction project should move forward.

18. In a statement released at 3:00 p.m. on December 4, 1987 Governor O'Neill concurred with the respondent counsel's recommendation that the Newtown jail project move forward.

19. Also on December 4, 1987 the respondent counsel's office contacted Attorney Campbell and informed him that the requested records would be available for pick-up after 4:00 p.m. Attorney Campbell received the records, approximately 34 pages, on the afternoon of December 4, 1987. Of such 34 pages, approximately one-half were copies of records sent to the respondent counsel by the complainant.

20. By letter dated December 22, 1987 and filed with the Commission on December 24, 1987 the complainant appealed the actions of the respondents, claiming that they had failed to comply with the complainant's request for records within four business days, as required by §1-21i, G.S.

21. By letter dated February 1, 1988 and filed with the Commission on February 4, 1988 the complainant alleged that because its request for records was not immediately granted it was denied an opportunity to submit comments concerning the records prior to the governor's December 4, 1987 acceptance of the respondent counsel's recommendation, and requested that such acceptance, therefore, be declared null and void.

22. At hearing the respondents moved to dismiss the complaint, claiming that the Town of Newtown is not a "person" within the meaning of §1-18a(c), G.S., which motion was denied.

Docket #FIC 87-392 Page Four

23. The respondent counsel claims he did not receive the complainant's request for records until either November 27, 1987 or November 30, 1987 and that he acted upon the request as soon as he became aware of it.

24. It is found that the complainant's written request for records did not differ in any meaningful way from the oral request made, on its behalf, by Attorney Campbell on November 20, 1987.

25. It is further found that even if the respondent counsel did not receive the complainant's written request until November 30, 1987, he was aware of the request as early as November 20, 1987, had the records at his disposal and could have complied with the request immediately upon its receipt.

26. The respondent counsel further claims that he did not wish to release records until he had compiled all pertinent data and that one of the records released, a memorandum to Mr. Carbone from the deputy commissioner of the department of public works, was not even prepared prior to December 2, 1987.

27. It is found that delaying the release of records pending the creation of the December 2, 1987 memorandum did not further any interest cognizable under the Freedom of Information Act. It was the respondent counsel's responsibility to provide existing records promptly upon request. Any records produced subsequently could thereafter have been forwarded to the complainant.

28. It is concluded that the respondent counsel's failure to produce the requested records until 4:00 p.m. on December 4, 1987 denied the complainant prompt access to such records, in violation of §§1-15 and 1-19(a), G.S.

29. The complainant claims that the respondent counsel's failure to produce the records in question promptly upon request denied it the opportunity to either rebut the assertions of its opponents or to provide additional information prior to the making of a decision by the governor.

30. The complainant further claims that the relief appropriate to the violation is an order declaring null and void the governor's acceptance of the respondent counsel's recommendation that the Newtown jail project move forward.

31. The respondents claim that the decision-making authority concerning the jail site actually belongs to the commissioner of public works and that the governor's acceptance of the respondent counsel's recommendation was, effectively, a

Docket #FIC 87-392 Page Five

vote of confidence without legal significance. The respondents acknowledge, however, that as a practical matter, if the governor had requested it, the commissioner of public works would have reviewed his decision.

32. The respondents further claim that if the complainant were able to compile additional information it could ask the governor for another review, pursuant to §3-1, G.S.

33. It is found that prior to December 4, 1987 the proposed jail site was extensively studied and discussed. The alleged flaws in the Antinozzi report were brought to the attention of the governor as early as August, 1987 and there ensued an exchange of ideas and criticisms concerning the report in which the complainant participated.

34. The current first selectman of the complainant indicated at hearing that he has recommended the appropriation of funds for consultants to review the documents should the governor's December 4, 1987 statement be declared null and void.

35. It is found, however, that the complainant has had all pertinent records in its possession since December 4, 1987, yet has failed to come forward with new data in opposition to the jail site. The existence of such additional data is, at best, speculative.

36. It is further found that on December 4, 1987 the governor was under no obligation to await additional comments from the complainant, having satisfied himself that the commissioner of public works had made a sound decision.

37. The Commission, therefore, declines to declare null and void the governor's acceptance of the respondent's recommendation concerning the Newtown jail project.

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

1. The respondent henceforth shall act in strict compliance with the requirements of §§1-15 and 1-19(a), G.S. concerning prompt access to public records.

Approved by order of the Freedom of Information Commission at its special meeting of June 22, 1988.

Catherine H. Lynch

Acting Clerk of the Commission