FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Kris Cieplak and Concerned Citizens For Clean Air,

Complainants

against Docket #FIC 88-184

Mayor of the City of Ansonia and the City of Ansonia,

Respondents August 24, 1988

The above-captioned matter was heard as a contested case on June 23, 1988, in conjunction with Docket #FIC 88-162, Ethan Book, Jr. and New England Energy Consultants v. Mayor of Ansonia, City of Ansonia and Ansonia City Counsel James Sheehy, 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:

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

2. In January, 1988 the City of Ansonia entered into negotiations with Newest, Inc. for the installation of a refuse processing system.

3. By letter dated May 4, 1988 the complainants made a request of the respondent mayor for a copy of the memorandum of understanding between the City of Ansonia and Newest, Inc.

4. By letter of complaint dated May 16, 1988 and filed with the Commission on May 17, 1988 the complainants appealed the respondents' failure to provide the requested record.

5. The respondents claim that the requested record is not subject to the Freedom of Information Act.

6. It is found that records relating to negotiations between the City of Ansonia and Newest, Inc. relate to the conduct of the public's business and are, therefore, public records within the meaning of §1-18a(d), G.S., subject to the Freedom of Information Act.

Docket #FIC 88-184 Page Two

7. The respondents claim that the respondent city has not reached an agreement with Newest, Inc., that therefore there exists no memorandum of understanding between it and Newest, Inc. and that any documents which exist are preliminary drafts and notes, within the meaning of §1-19(b)(1), G.S.

8. The respondents further claim that, based upon potential harm to their negotiation posture, they have made a determination that the public interest in withholding the documents clearly outweighs the public interest in disclosure.

9. The Commission notes that the disposition of the issues in the above matter was made unusually difficult by the respondents' reluctance to reply to questions relating to the records in question or the negotiations with Newest, Inc.

10. It is found that as of the date of hearing in the above matter a proposed memorandum of understanding was being considered by the respondents and Newest, Inc.

11. It is further found that such proposed memorandum of understanding may or may not contain the agreement ultimately reached by the respondents, but it at least reflects the options currently under consideration.

12. It is concluded that the proposed memorandum of understanding is not a preliminary draft or note within the meaning of §1-19(b)(1), G.S., rather, it is a completed proposal, which may or may not be accepted.

13. It is also found that the proposed memorandum of understanding is a report comprising part of the process by which governmental decisions and policies are formulated, the disclosure of which is required by §1-19(c), G.S.

14. The respondents failed to prove that the proposed memorandum of understanding is exempt from disclosure pursuant to any other state statute or federal law.

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 a copy of the proposed memorandum of understanding referred to at paragraph 10 of the findings, above.

Approved by order of the Freedom of Information Commission at its special meeting of August 24, 1988.

Catherine H. Lynch

Acting Clerk of the Commission