FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Mallozzi Construction Co., Inc.,

 

                        Complainant

 

            against              Docket #FIC 93-195

 

Stamford Board of Finance

 

                        Respondent                  December 22, 1993

 

            The above-captioned matter was heard as a contested case on October 7, 1993, 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 (facsimile) dated June 2, 1993, the complainant requested from the respondent access to a copy of an investigative report prepared by Austin McGuigan (hereinafter "MCC Report") concerning possible improper conduct on the part of the complainant with respect to performance of a city of Stamford (hereinafter "city") contract.

 

            3.  By letter dated June 18, 1993, the respondent denied the complainant's request claiming that the MCC Report is not subject to disclosure under the Freedom of Information (hereinafter "FOI") Act.

 

            4.  By letter (facsimile) dated and filed with the Commission on July 16, 1993, the complainant appealed the denial of access to the MCC Report.

 

            5.  Section 1-18a(d), G.S., defines public records as "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."

 

            6. It is found that Mr. McGuigan submitted a draft of the MCC Report to the respondent on May 3, 1993, and a final version a few days later.

 

Docket #FIC 93-195                           Page 2

 

            7.  It is concluded that the MCC Report is a public record within the meaning of 1-18a(d), G.S.

 

            8.  The respondent contends that the MCC Report is exempt from disclosure under 1-19(b)(4) and 1-19b(b)(1), G.S.

 

            9.  Section 1-19(b)(4), G.S., states in relevant part that nothing in the FOI Act requires disclosure of records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.

 

            10.  Section 1-19b(b)(1), G.S., states in relevant part that nothing in the FOI Act shall be deemed in any manner to affect the rights of litigants under the laws of discovery of this state.

 

            11.  It is found that the city filed suit against the complainant on February 9, 1993 and that such suit is pending.

 

            12.  However, it is found that the respondent failed to prove that disclosure of the MCC Report pertains to strategy or negotiations with respect to the litigation referred to in paragraph 11, above.

 

            13.  It is also found that the respondent failed to prove that disclosure of the MCC Report would affect the rights of litigants under the laws of discovery of this state, within the meaning of 1-19b(b)(1), G.S.

 

            14.  It is therefore concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with access to a copy of the MCC Report.

 

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

 

            1.  The respondent shall forthwith provide the complainant with a copy of the MCC Report.

 

            2.  Henceforth, the respondent shall strictly comply with the provisions of 1-15(a) and 1-19(a), G.S.

 

Docket #FIC 93-195                           Page 3

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 22, 1993.

 

                                                                 

                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission

 

Docket #FIC 93-195                           Page 4

 

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:

Mallozzi Construction Co., Inc.

c/o Dennis J. Taylor, Esq.

36 Grove Street

New Canaan, CT 06840

 

Stamford Board of Finance

c/o Richard A. Robinson, Esq.

Stamford Assistant Corporation Counsel

888 Washington Boulevard

P.O. Box 10152

Stamford, CT 06904-2152

 

                                                                 

                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission