FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Diane Alverio and WFSB/TV3,

Complainants,

against Docket #FIC 88-495

University of Connecticut Institute for Social Inquiry,

Respondent April 26, 1989

The above-captioned matter was heard as a contested case on February 21, 1989, at which time the Division of Public Defender Services was admitted as a party. The hearing was continued to February 28, 1989, at which time the parties appeared and presented stipulations, testimony and evidence.

After consideration of the entire record, the following facts are found.

1. The respondent Institute for Social Inquiry (ISI, hereinafter) is a public agency within the meaning of §1-18a(a), G.S.

2. By letter of complaint filed December 22, 1988, the complainants alleged that the respondent ISI denied them access to the results of a poll commissioned on behalf of the Division of Public Defender Services (the Division, hereinafter) concerning whether Richard Crafts, an accused murderer, can receive a fair trial in Connecticut.

3. At hearing the hearing officer granted the motion of the Division to be made a party to this proceeding.

4. The parties agreed that the request of the complainants was made within thirty days prior to the filing of the complaint with the Commission.

5. The parties further agreed that they waived any right they may have had to contest the failure of the complainants to put their request for the record in writing.

6. At hearing the parties offered three items for in camera inspection: (1) the requested record, (2) an affidavit to prove the existence of attorney/client relationship and (3) a document to show the amount of money charged by the ISI for the survey.

Docket #FIC 88-495 page two

7. The three offers for in camera inspection were denied by the hearing officer pursuant to the Commission regulation prohibiting such inspection.

8. The respondent ISI claims that the portion of its activities which pertain to the research it conducts does not constitute the business of the public, and therefore, its poll results are not public records.

9. It is found that the respondent ISI was created by a faculty member at the University of Connecticut, who is presently its director.

10. It is found that the respondent ISI conducts commissioned research as a research institute.

11. It is found that the respondent ISI operates in facilities provided by the University of Connecticut at Storrs, and that it receives some university funds in addition to fees for its services.

12. It is found that the respondent ISI uses administrative and support services provided by the university.

13. It is found that the portion of the activities of the respondent ISI which pertain to the research it conducts does constitute the public's business, and that with respect to its research activities it is a public agency within the meaning of §1-18a(a), G.S.

14. The Division claims that the record sought by the complainants is not a public record because it was commissioned on behalf of the public defender representing Richard Crafts.

15. It is found that the respondent ISI developed and continues to maintain the data and a report of the poll which the complainants seek.

16. It is found that the requested record is a public record within the meaning of §1-18a(d), G.S., because it is recorded data or information relating to the conduct of the public's business which is prepared and retained by the ISI.

17. It is found that the legal status of the report which is in the possession of the Division in its capacity as public defender in the Richard Crafts case need not be decided, because the same record is maintained by the ISI, and because request for the record was made to the ISI.

Docket #FIC 88-495 page three

18. The respondent ISI claims that the requested record is exempt from disclosure as a trade secret under §1-19(b)(5), G.S., because it is a commercially valuable plan which is unpatented and secret.

19. It is found that the respondent ISI failed to prove that the requested record which is the result of a poll satisfies the relevant elements of the trade secret exception which is set forth at §1-19(b)(5), G.S.

20. The Division contends that the requested records are exempt under §§1-19(b)(1), 1-19(b)(2), 1-19(b)(4), and §1-19(b)(10), G.S.

21. The Division contends that because it may ask the ISI to do additional work with its data at a future time the requested record is exempt as a preliminary draft or note under §1-19(b)(1), G.S.

22. It is found that in December the ISI delivered a report to the Division pursuant to its contract with it.

23. It is found that the complainants seek only the report which was delivered in December, and not the data or analyses used in preparing it.

24. It is concluded that the Division failed to prove that the requested record is exempt from disclosure as a preliminary draft or note under §1-19(b)(1), G.S.

25. The Division claims that the requested record is exempt from disclosure under §1-19(b)(2), G.S., because disclosure might prevent Richard Crafts from receiving a fair trial.

26. It is found that disclosure of the report could have an impact upon public opinion concerning whether Crafts is guilty or innocent of the murder he is alleged to have committed.

27. It is found, however, that the record in question does not fall within the exemption at §1-19(b)(2), G.S, because the Division did not prove that the requested record was a personnel or medical file and similar file within the meaning of §1-19(b)(2), G.S.

28. The Division claims that the record is exempt from disclosure under §1-19(b)(4), G.S.,because one of its attorneys represents Richard Crafts in his upcoming murder trial.

Docket #FIC 88-495 Page four

29. It is found that the Division failed to prove that the requested record is exempt under §1-19(b)(4), G.S., because itis not a party to the litigation.

30. The Division claimed that the requested record is exempt under §1-19(b)(10), G.S., because the document was commissioned on behalf of the Crafts defense.

31. It is found that the Division failed to prove that the requested record contains confidences of its client Richard Craft.

32. It is found further that the services provided by the ISI do not fall within the protection of the attorney-client privilege by analogy with the services of a psychiatrist, or a psychologist, because at no time did any representative of the ISI interview Richard Crafts, or receive any statement from him upon any matter.

33. It is concluded that the Division failed to prove that the requested report was exempt from disclosure under §1-19(b)(10), G.S.

34. It is concluded that the respondent ISI and the Division have failed to prove that the record requested by the complainant is exempt from disclosure under any of the exemptions claimed by it.

35. It is found that the respondent ISI by policy does not conduct secret research, and that the requested record will become publicly accessible after sufficient time has elapsed, as determined by the ISI in consultation with the Division, so that disclosure will not further contaminate the existing pool of jurors.

36. It is found that, because of the commitment of the respondent ISI to public disclosure and because disclosure could have a negative effect upon the upcoming trial of Richard Crafts, it is not appropriate for the Commission to order disclosure of the requested record at this time.

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

1. The respondent is hereby ordered to provide the complainants with a copy of the requested record, as set forth in paragraph 2 of the findings above, on the entry of judgment in the case of State of Connecticut v. Richard Crafts Docket #CR3-59235A.

Approved by order of the Freedom of Information Commission at its regular meeting on April 26, 1989.

Karen J. Haggett

Clerk of the Commission